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

CRWIA Stage 2 – Assessment of Impact and Compatibility

What evidence have you used to inform your assessment? What does it tell you about the impact on children's rights?

The assessment has been informed a range of quantitative and qualitative evidence, including the following:

• The Scottish Crime and Justice Survey (2018 – 2020)
• National Statistics Recorded Crime In Scotland (2018 – 2021)
• Scottish Health Survey (2019)
• NSPCC Statistics Briefing: Child Sexual Abuse (2021)
• Public Health Scotland information about gender-based violence and learning disability (2019)
• Suffering in silence: children and unreported crime – a Victim Support and University of Bedfordshire report (2014)
• The Everyday Heroes report on justice – Houghton and MacDonald (2018)
• Rates of post-traumatic stress disorder in trauma-exposed children and adolescents: a meta-analysis – Eva Alisic et al, published in The British Journal of Psychiatry (2014)
• The experiences of young complainant witnesses in criminal court trials for sexual offences, I Randell et al, published in Psychiatry, Psychology and Law (2017)
• Legal update on the backlog in the criminal courts: the impact on children and young people – Youth Justice Legal Centre (2021)
• Delays in trials: the implications for victims-survivors of rape and serious sexual assault Michele Burman and Oona Brooks-Hay, Scottish Centre for Crime & Justice Research (2020)
• Power Up / Power Down project report – Scottish Women's Aid and the Children for Commissioner and Young People in Scotland (2016)
• Tackling female genital mutilation in Scotland: A Scottish Model of Intervention – scoping study carried out by the Scottish Refugee Council (2014)
• Counting the cost: BME women and gender-based violence in the UK – Hannana Siddiqui (2018)
• Why don't sexual offence complainers have a right to anonymity in Scotland? - Dr Andrew Tickell, published in Edinburgh Law Review (2020)
• How should complainer anonymity for sexual offences be introduced in Scotland? Learning the international lessons of #letherspeak - Dr Andrew Tickell, published in Edinburgh Law Review (2022)
• Scotland's national action plan to prevent and eradicate female genital mutilation (2016)
• Inspection of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 – HM Inspectorate of Prosecution in Scotland (2022)
• Victims Taskforce Victims' Voices paper (December 2020)

Main findings relating to children's rights

The evidence suggests that children and young people are among the groups of people who more likely to have been the victims of crime, to be vulnerable to trauma, or both.

There is also evidence to suggest that young victims and witnesses find aspects of the justice system particularly traumatising, with delays to proceedings having a particularly negative impact on children and young people. This includes children and young people who are directly involved in proceedings or indirectly involved, for example, through their parent or carer being a complainer.

The evidence shows that young women and girls are particularly impacted by sexual offences and that children with a disability are at greater risk of experiencing physical, emotional and sexual abuse. The evidence also shows there is an increased risk of gender-based violence and more barriers to support for minority ethnic girls (and women), and that girls and young women from certain minority ethnic communities are at greater risk of some of the offences covered by the provisions on anonymity, for example female genital mutilation.

Specific evidence from the listed sources that have informed these findings is set out in further detail in the annex at the end of this document, as well as in the Equality Impact Assessment (EQIA) for the Bill,, which has been published separately.

Evidence from stakeholders / policy colleagues

A consultation on improving victims' experiences of the justice system ran from 12 May to 19 August 2022. The consultation sought views on all of the policies in the Bill with the exception of abolishing the not proven verdict and related reforms, which was the subject of a separate consultation. The consultation also asked respondents for any views that impacts the policies may have on human rights, equalities and children's rights, including UNCRC requirements.

The consultation received 69 responses and an analysis report of the findings was published in November 2022, along with an easy read summary of the main findings and individual responses (where permission to publish was granted).

Findings and information from the consultation responses relevant to children and young people are set out below.

Establishing a Victims and Witnesses Commissioner for Scotland

In relation to the remit and functions of the role, it was highlighted that there may be overlap between the Victim and Witnesses Commissioner and Children and Young People's Commissioner for Scotland, and consideration should be given to how any potential overlap is addressed. Additional functions for the Victims and Witnesses Commissioner proposed by respondents included a specific function to protect child victims and a role in monitoring compliance with the Bairns Hoose Standards.

The consultation asked whether the remit of the Commissioner should extend to victims and witnesses within the civil justice system and the Children's Hearings system. Around three quarters of respondents felt that the experience of victims in the civil justice system (73%) and Children's Hearings System (76%) should also be in scope. Some respondents urged caution with regard to extending the remit to the Children's Hearings System, with the need to ensure that the rights of the child subject to the Children's Hearing remains at centre stage.

Further comments suggested that family members of victims and witnesses, family members of those accused of a crime and children who have engaged in offending behaviour and have themselves also been victims of crime should also come within the functions and remit of the Commissioner.

On the proposed duty for the Commissioner to produce annual reports, it was noted that all reporting should be done in such a way that it is accessible to victims, including children and young people.

Partnership working and engagement was a key theme in the responses, and it was noted that this must include organisations representing children and young people, as well as other sectors and agencies who support victims and their children. This included housing, education, health, social work and residential care providers.

As part of the consultation process, a stakeholder workshop was held to discuss the proposals for the Victims and Witnesses Commissioner. Organisations who work children, young people and families invited to attend the workshop included: Cairn Service/6VT Edinburgh City Youth Café, Children's Hearings Scotland, the Children and Young People's Centre for Justice, Families Outside, Scottish Children's Reporter Administration and Scottish Women's Aid.

Attendees at the workshop highlighted the importance of the Commissioner engaging both with individuals with lived experience and also with learned experience, for example advocacy and support workers. The discussions also emphasised the need for children's voices to be a necessary part of engagement.

Embedding trauma-informed practice across the justice system

Stakeholders responding to the consultation were clear that they felt children and young people should be treated in a trauma-informed manner in the justice system. There was agreement on the need for a culture change towards trauma-informed practice, and support for underpinning trauma-informed practice in legislation.

The need for a more trauma-informed approach to court scheduling was highlighted and it was suggested that children and young people (and their families/carers) should be able to speak to court staff about processes and procedures to help them prepare. Ways in which the courts could adapt their practices to make them more accessible, less intimidating and reduce possible negative impacts on children which were suggested included shorter sessions, adaptations to court layout, court attire and choice of language used.

The importance of work on Bairns Hoose in making a positive impact for children in the justice system was emphasised by several respondents, along with the need for proposals in the Bill to align with that work.

Concerns which were raised included that tools already the courts' disposal - such as special measures and the use of pre-recorded evidence - were not consistently and regularly used; and that any changes to the scheduling of criminal court cases could have an impact on Children's Hearings proceedings.

Special measures for vulnerable parties and witnesses in civil cases

Responses to the consultation noted that child witnesses in any proceedings should have the same protections to ensure they are not inhibited in the evidence they give, and that there should be parity of the special measures available in all civil and criminal court cases.

It was highlighted that children (and other vulnerable witnesses) should have the support of special measures regardless of the court hearing the case, as they could be at risk of the same trauma and harm in any civil court as could be caused in a criminal court. It was also noted that cross-examination by someone who is self-representing (for example a parent who is accused of domestic abuse in a criminal case) could be particularly traumatic for a child.

Creating a Sexual Offences Court

As a trauma-informed approach is a key part of the proposals for the Sexual Offences Court, the responses summarised above in the section on embedding trauma-informed practice across the justice system are also relevant for this proposal.

Lifelong anonymity for complainers in sexual and certain other offences

The consultation asked when an automatic right to anonymity should take effect, with most respondents who answered this question (60%) indicating that they felt it should be when an allegation or disclosure of sexual offence is made. A few respondents stressed the need for children to be provided with immediate anonymity and argued that this should be provided across all types of sexual offences and be relevant to all types of media (including online and social media).

There were mixed views in response to the question on children being able to set anonymity aside. The dominant feedback was that such decisions should be dealt with on a case-by-case basis, taking into account the age, stage and capacity of the child or young person, while also ensuring the child or young person was supported in making such a decision.

Generally, it was also felt important that, if children could waive their anonymity, then there should be judicial oversight of the process to ensure the child understood the implications and potential consequences, that they were making a fully informed decision, and to be able to provide safeguards against coercion and exploitation.

The consultation also asked for views on whether a minimum age should be set if children were able to waive their right to anonymity. Where age limits were discussed in responses, these included:

• two respondents who felt the age limit should be set to 12, in line with criminal responsibility (albeit with safeguards in place to ensure the child is fully informed, supported and not being coerced into the decision)
• six respondents who felt the age limit should be set to 16, in line with the age of consent
• seven respondents who felt the age limit should be set to 18, in line with the UNCRC (although a few did suggest that if it was to be set to 16 or 17 or there was to be any consideration below age 18, this would require judicial oversight and safeguards)
• seven respondents argued that setting an arbitrary age limit was less appropriate than considering the child/young person's stage of development, maturity and capacity to make such a decision and understand the consequences.

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

Responses to the consultation highlighted that this proposal aligns with aim of a trauma-informed approach in the justice system. The importance of individual advocacy and support for children and young people was highlighted, not only in terms of protections and recognising their needs but also to ensure that they receive information in a way that is understandable to them.

Summary of views in response to the question on the overall impact of children's rights and in relation to UNCRC

While the proposals were seen (among victim and witness support organisations) as potentially having a positive impact on the human rights of children and young people experiencing rape and sexual assault, and domestic abuse, some other organisations (including advocacy/support organisations working with children and young people) felt that greater consideration could have been given throughout the consultation to impacts of the proposals on children and young people. A specific comment was made that more consideration needed to be given to child victims and children who have harmed people.

Other evidence from stakeholders and policy colleagues

As well as engagement through the formal consultation, officials have engaged with stakeholders and policy colleagues as the content of the Bill has been developed.

Feedback during wider engagement which has been considered includes:

• the need for clear interfaces between the Victims and Witnesses Commissioner and the Children and Young People's Commissioner
• the Bairns Hoose principles have been highlighted as a good example of ways to make the process more trauma informed and victim sensitive
• the use of virtual hearings in the Children's Hearings System throughout the pandemic and beyond was highlighted as evidence that in-person hearings may not always be best for children and young people and that special measures such as TV links and pre-recorded evidence can be particularly beneficial for children and young people
• there are concerns that survivors of domestic abuse, including children, are subject to civil court processes that do not provide them with adequate protection from further abuse and trauma
• consideration of children's rights in terms of anonymity for sexual offence complainers was highlighted as potentially being a complex area

There have been discussions with Scottish Government colleagues in Children's Hearings and Bairns Hoose policy teams and the Children (Care and Justice) Bill Team. It was noted that responses to the public consultation on proposals for the Children Care and Justice (Scotland) Bill also highlighted the importance of responding the children in conflict with the law in a trauma-informed manner.

Evidence from children and young people

While here has not been any direct engagement in relation to the Bill specifically with children and young people, engagement has taken place with organisations who work with, support and represent children and young people. Several of the evidence sources which have been considered include the views and experiences of children and young people.

Organisations that work with children, young people and families which have participated in the consultation process and with whom engagement has taken place that has informed policy development include: Children and Young People's Commissioner for Scotland; Children 1^st; Children and Young People's Centre for Justice; includem; the Scottish Children's Reporter Administration; Cairn Service/6VT Edinburgh City Youth Café; Social Work Scotland (including views from Children and Families professionals) and Scottish Women's Aid. Feedback from these organisations is included in the evidence sections above.

It is acknowledged that some respondents to the consultation felt that greater consideration could have been given throughout the consultation to impacts of the proposals on children and young people.

In relation to the policy to establish a Victims and Witnesses Commissioner, who will sit independently of the Scottish Government, it was not considered proportionate at this stage to engage directly with children and young people on the proposal. Such engagement, however, is considered to be an essential part of future development work on a potential extension of the Commissioner's remit to the Children's Hearings system.

Analysis of the evidence

How have the findings influenced the development of the relevant proposal?

The findings demonstrate support for the proposals and supported decisions for the policies to be included in the Bill.

The findings have informed understanding of the prevalence of child and young victims and highlighted the needs of these groups in the justice system. They have underlined the importance of partnership working both within and outside of the Scottish Government to ensure the best outcomes for child and young people who come into contact with the justice system.

The impacts on the development of specific policies are summarised below.

Establishing a Victims and Witnesses Commissioner for Scotland

The findings have illustrated how the Commissioner could have a role in promoting and protecting children and young people's rights in this context. They have allowed officials to identify areas for further development and engagement, such as discussion with the Children and Young People's Commissioner for Scotland (CYPCS). Making the role statutory provides parity with the role of other commissioners, including the CYPCS.

The Bill provides a power for Scottish Ministers to amend, by regulations, the definition of victims and witnesses, and add to the list of criminal justice agencies, thereby allowing for extension of the remit to the Children's Hearings system.

Embedding trauma-informed practice across the justice system

The findings confirmed that embedding a principle of trauma-informed practice in legislation is seen as a positive step for children and young people in the justice system. They also suggested that courts could do more to reduce the negative impacts of justice processes on children and young people, whether by adapting their practices or by making greater use of existing powers available to them. This informed the development of the policy to amend the courts' existing powers to regulate court proceedings, to ensure that the courts can make rules on proceedings being conducted in a way that accords with trauma-informed practice.

The findings also highlighted further complexities around court scheduling. This influenced the design of the final policy on trauma-informed scheduling, which is intended to be sufficiently flexible to recognise and allow for these complexities.

Special measures for vulnerable parties and witnesses in civil cases

The findings have highlighted concerns that vulnerable witnesses in civil court cases generally, including child witnesses, may be less protected than victims and witnesses in criminal cases, or in certain family proceedings. The consultation responses showed general support for the proposals on extending special measures to all civil cases and, as such, provisions have been included in the Bill.

Creating a Sexual Offences Court

The list of sexual offences that can be heard by the Sexual Offences Court has been expanded beyond those recommended by Lady Dorrian's Review. These include offences relating to hymenoplasty, virginity testing and female genital mutilation, where complainers are often girls and young women.

Offences under section 1 of the Domestic Abuse (Scotland) Act 2018 where it is apparent from the charge that there was a substantial sexual element present in the alleged commission of the offence, can also be heard by the Sexual Offences Court. By hearing cases that involve such offences the court will positively impact children whose parents and carers are victims of such cases and who will be provided specialist support during proceedings.

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.

Further protections will be put in place through the extended use of Ground Rules Hearings (GRHs) in the new court. GRHs are currently required in cases involving 'evidence by commissioner'. This is when a child or vulnerable witnesses gives their evidence in advance of the trial and a filmed recording of this is played during the trial. The purpose of a GRH is to bring together parties involved in taking evidence from the child or vulnerable witness, in order to try to ascertain a number of issues including how long examination-in-chief or cross-examination may take^[1]; to decide on the form and wording of the questions to be used; and to consider whether the proceedings should take place on the date fixed by the court. Lady Dorrian's Review found that that GRHs have been successful in improving the experience of complainers and are working effectively. To that end, GRHs will be used for all cases where a child or vulnerable witnesses is to give evidence in the Sexual Offences Court, and not just for cases which involve evidence by commissioner.

Lifelong anonymity for complainers in sexual and certain other offences

The findings confirm that while there is strong support in general terms for introducing legislation to provide for an automatic right of anonymity for victims of sexual and certain other offences, there are complexities involving the detail of how such a right is legislated for in respect of children and young people.

There are mixed views on the question of whether a child should be able to waive their own right to anonymity if that is their wish (where the policy for adult victims is to respect adults' autonomy and 'right to be heard' should survivors wish to speak out publicly about their lived experiences). It is recognised through stakeholder evidence and engagement that if similar provision is made for children, it is important that there should be some form of additional protection within the waiver process to ensure a child understands the implications and potential consequences of doing so; that they are making a fully informed decision; and that safeguards are provided against coercion and exploitation by third parties. As proposed in the Bill, such protection has been provided for in the form of judicial oversight.

Findings from the evidence gathering step informed policy development in this regard by confirming bespoke approaches had to be taken when it comes to children and young people in this area, distinct from the policy approach for adult victims. The evidence gathered has also to helped inform what those bespoke approaches should be.

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 evidence suggests that younger people are more likely to be a victim of a sexual offence. In addition, evidence shows that applications to lead sexual history and/or 'bad character' evidence in sexual offence cases have been made in relation to young people under 18. The proposals have therefore been developed on the basis that the right to independent legal representation will impact younger age groups including young people up to the age of 18.