Domestic abuse court experiences - perspectives of victims and witnesses: research findings

Appendix 2: Overview of roles and responsibilities

Roles and Responsibilities of key justice and victim/witness agencies across the criminal justice journey[82]

Reporting, investigation and prosecution of domestic abuse

There is a detailed protocol of procedures and practices that will be followed by Police Scotland and COPFS in the investigation, reporting and prosecution of domestic abuse.

The police respond to domestic abuse reports; take statements; carry out the initial investigation (gathering evidence and witness statements); report the case to the Procurator Fiscal[83] with draft charges where there is sufficient evidence of a crime (see the Police Scotland/COPFS joint domestic abuse protocol). The police role is to protect members of the public and prevent, detect and investigate crime. Where a child is present, attending officers assess a child's general wellbeing, risk and safety, make all efforts to speak with a child and establish if they are a witness to the 'incident' or/and if there is a child protection concern[84]. Consequent action might include an inter-agency referral discussion (IRD); Joint Investigative Interview conducted by trained police officers and social workers[85] or/and a referral to the Children's Reporter (SCRA)[86]. The police notify victims of the decision to report a case to the Procurator Fiscal and also whether the accused is being kept in custody meantime or liberated on an undertaking to appear at court. The Procurator Fiscal can instruct the police to carry out further investigation (if they feel more evidence is required).

The Procurator Fiscal (PF, a prosecution lawyer working for COPFS, Scotland's public prosecution service) decides if there is sufficient corroborative evidence, that is evidence from at least 2 sources, to establish both that a crime was committed and that the accused committed the crime and whether it is in the public interest to prosecute. If there is sufficient evidence, there is a presumption in favour of prosecuting in domestic abuse cases. Once a decision is taken by the Procurator Fiscal to either prosecute or not, it is COPFS who will notify the victim of decisions and outcomes in relation to the case from that point (see VIA below).

When a decision is made to prosecute, the PF considers all the facts and circumstances of the case, and decides what charges the accused should face, based on the evidence. The PF will also consider what forum and court the case should be heard in, whether as a summary case in the Sheriff Court or as a solemn case which is likely to proceed before a jury in either the Sheriff or High Court. In any case where there is evidence to support a prosecution under DASA S1, the PF will consider whether there is evidence to support adding a child aggravation to the charge in terms of S5 of the 2018 Act. Only 1 source of evidence is required to prove a child aggravation. COPFS cite witnesses for the prosecution. Where the accused is reported in custody or by way of an undertaking, the PF also decides on whether to oppose bail or to not, and if not, whether it is appropriate to seek additional special bail conditions, such as requiring the accused to reside at an alternative address and preventing the accused from approaching or contacting the victim (referred to as the complainer) or other witnesses. Decisions on bail and bail conditions are made by the Sheriff after hearing from the PF and the defence agent (the accused's lawyer).

Preparation for court

All domestic abuse cases, and cases involving child witnesses or other vulnerable witnesses, are referred to the Victim Information and Advice (VIA) service within COPFS. VIA is responsible for providing information about the court process and keeping the complainer, child witness or other vulnerable witness updated on the progress of their case, including bail decisions, hearing dates, verdicts and sentences. VIA's role also involves contacting vulnerable witnesses in advance of a trial to explore appropriate special measures with them to assist them in giving their evidence at trial; VIA then apply to the court for these special measures (see below). If VIA do not hear from the victim/witness they will still apply for the standard special measures they feel are appropriate. VIA can also pass on information from the witness to the PF, including the witness' views on a non-harassment order. VIA also provide advice on other support available and can refer the complainer to Victim Support Scotland (VSS) or/and to specialist support or advocacy services, if available. They may share information with such services about the progress and outcome of the case.

There are additional support arrangements that can be made for victims and witnesses who feel vulnerable such as entering the court building through a different entrance, waiting in a separate room, and requesting comfort breaks when giving evidence. There are Special Measures to help victims and witnesses when they are giving evidence. As all domestic abuse complainers (victims) and child cited witnesses are deemed vulnerable witnesses in terms of section 271A(5)(a)(i) of the Criminal Procedure (Scotland) Act 1995 they are automatically entitled to the use of standard special measures[87] when giving evidence, these are:

• a screen in court that obscures the witness from the perpetrator
• a supporter– this can be a member of the VSS court witness service or a named person can be requested (e.g. friend, relative, support worker)
• CCTV link when the witness can give live evidence from a secure location outwith the courtroom, in the same court building or in another location
• The Sherriff/judge makes the decision about what is allowed in each case

A letter from VIA specifically invites eligible victims/witnesses to make contact to discuss their preferences prior to any application for Special Measures being submitted to the court, victims'/witnesses' are directed to further information on the website in this letter. VIA also advises what special measures will be automatically requested on their behalf should they prefer not to engage in any discussion[88]. VIA's role is to advise all vulnerable witnesses of the available special measures and discuss the witness' options and preferences with them. Support services may also inform VIA of victim and witnesses' views about special measures. VIA will then submit Vulnerable Witness Applications to the court to seek/arrange the relevant special measures.

There may be cases where VIA/COPFS identify that a non-standard measure is desirable, based on information in the police report or from the witness. If non-standard special measures are required for a particular witness in a case then COPFS VIA staff will discuss those with the complainer directly and COPFS will apply to the court to grant the non-standard special measure. These are evidence by prior statement, evidence by commissioner and closed courts (members of the public not allowed in whilst victim/witness giving evidence):

• 'Evidence by statement' means that the sheriff/judge may allow the statement given by the witness to the police to form part of the evidence. The statement will be read (if it is a written statement) or played (if it is a pre-recorded statement) in court at the trial. This statement cannot form all of the evidence so the victim/witness will still have to give some evidence at the trial or at an Evidence by Commissioner hearing, including giving evidence under cross-examination.
• 'Evidence by Commissioner' is when the sheriff/judge allows the victim/witness to give all their evidence away from the courtroom before the trial takes place. This will include questioning by the lawyers representing the accused. The evidence will be filmed, and the recording will be played in court at the trial.

The Vulnerable Witnesses (Criminal Evidence)(Scotland) Act 2019 created a rule for child witnesses under 18 to ensure that they will be allowed to have evidence pre-recorded in advance of the trial in the most serious cases, usually by 'evidence by commissioner'. In High Court cases, evidence by commissioner is likely take place in relation to child witnesses[89], this doesn't apply in summary cases.

At Court

Victim Support Scotland's Court Service can help witnesses with court familiarisation visits, information about court/special measures and practical help. They can sit in court with witnesses in waiting rooms and they can act as the court supporter while the witness gives evidence, in terms of special measures applications. VIA make arrangements with SCTS and VSS where required to support witnesses giving their evidence, including arranging a separate entrance or waiting room for the witness at court.

At court, the PF prosecutes the cases in the public interest in the summary courts and the Sheriff and Jury courts. Advocates Depute prosecute in the public interest in the High Court. PFs will, wherever possible, seek to meet with complainers and children who are witnesses in domestic cases, at court, on the day, before the trial starts and the witnesses give evidence. In some solemn cases, the PF may meet witnesses to find out more about the alleged crime ('precognition') before a case goes to court.

The defence agent represents the accused. If the accused pleads not guilty and the case goes to trial they will ask witnesses questions on behalf of the accused (cross-examination). The accused person is entitled to the presumption of innocence and the prosecutor must prove the case against the accused by leading evidence before the court. Sometimes an accused person may offer to plead guilty to one or more charges on the condition that the prosecutor accepts a plea of not guilty to other charges, or that the charges are amended in some way. This is known as plea negotiation.The prosecutor will consider any offer by an accused person to plead guilty to certain charges on the basis of the facts and circumstances of the individual case and will consider if it is in the public interest to accept the offered plea. A plea of guilty represents an admission and an acknowledgement on the part of the accused that they accept responsibility for their conduct. It also means that complainers and witnesses will not need to give evidence in court. It is entirely up to accused if, when and at what stage they wish to tender a plea of guilty or not.

Judges and Sheriffs sitting in the Sheriff and High Court are legally qualified and act independently in considering cases and making decisions. In summary criminal courts in the Sheriff Court, criminal cases are heard at trial and decided upon by Sheriffs, who will sentence the accused if they plead guilty or are convicted after trial. In solemn proceedings, cases proceed to trial before a jury of 15 members of the public who decide whether an accused person is guilty or not. A Sheriff in the Sheriff Court and a Judge in the High Court provides the Jury with legal directions in the case and if convicted, sentences the accused.

In domestic abuse cases if an accused is convicted, the prosecutor advises the court of any views expressed by the complainer in relation to whether they wish a Non-Harassment Order (NHO) to be imposed, but the decision on whether or not to impose a NHO is made by the Sheriff. Following conviction, the court must consider whether to make a NHO and must make such an order for the victim or/and children[90], unless the court is satisfied that there is no need for them to be protected by such an order. A letter from VIA informs the victim/witness of the court outcome including any NHOs.

The Scottish Courts and Tribunal service (SCTS) provide administrative support for the Scottish Courts and judiciary[91] and are responsible for the operation of courts across Scotland (i.e. property, services, officers, staff), taking account of the needs of those involved in proceedings, for example, ensuring there are separate waiting areas. Their role includes fixing dates for court hearings.

Specialist support and advocacy services

ASSIST/EDDACS are specialist domestic abuse support/advocacy services aiming to ensure victims/witnesses are safe, informed and supported thoughout their involvement with the criminal justice system. They work in partnership with justice agencies mentioned. They support victims of domestic abuse where a person has been charged or is likely to be charged, and child cited witnesses are involved. ASSIST offers support to victims in over a third of local authorities and has a children/young person support/advocacy team and a young adult advocacy service; EDDACS offers support to adult female victims and is part of Edinburgh Women's Aid which also offers a children/young persons' support service. Both services contact the victim after receiving referrals from police (mainly), or VIA or other services/self-referrals. Their focus is on risk assessment, safety, information and support. A named key worker discusses the victim's/witnesses' views on risk and safety, court, bail conditions, safety measures and shares the information with VIA/PF, including information on victim's/witness' views and safety regarding NHOs. They keep the victim/witness updated on case progress and outcomes through access to the (restricted) Scottish Courts information system[92] and sometimes VIA. They inform victims and child cited witnesses[93] of the range of special measures options and pass views onto VIA/COPFS. They discuss victim's/witnesses' views of the outcomes and any further support needs, signposting to other services.