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

5. At court

Headline findings

• Going to court was rarely a singular event for participants in this research. Many attended multiple hearings for the same case, some were victims or witnesses in other cases about domestic abuse involving the same accused, and others were involved in civil justice proceedings.
• The overall quality of participants' experiences of being at court varied. This ranged from it being a difficult experience, through to it being a frightening and traumatic experience. Such varied experiences spanned different types of court hearings, as well as different types of criminal cases. The ability of courts to accommodate the needs of victims and witnesses were central to the quality of participants' experiences.
• Persistent findings related to the negative impacts of delayed proceedings; the 'emotional cost' of going to court; giving evidence in an adversarial process; feeling uninformed and excluded from the management of the criminal case; and not being aware or understanding the rationale for court decisions.
• While there were negative findings about being at court, participants raised the potential for court to empower, and provide a sense of closure to, victims and witnesses. Support and advocacy were identified as crucial to improving experiences of being at court.

Introduction

In this section, we report on adult and child participants' experiences of being at court as a victim or witness in criminal proceedings relating to domestic abuse. As discussed in the previous chapter, adult victims as well as child witnesses are classed as vulnerable witnesses in domestic abuse cases, with a right to standard special measures to help them give evidence, these are: screens; a supporter and giving evidence from a secure location outwith the courtroom, in the same building or another location. It is also possible to request a separate entrance to the accused, if available, and separate waiting rooms with a court witness supporter. The increased focus on the perpetrator's behaviour through the Domestic Abuse (Scotland) Act 2018 (DASA) sought to reduce the risk and impact of re-victimisation of victim(s) involved^[57] , including when at court. DASA reforms aimed to reduce the possibility of the accused using the system to exert control and influence over the complainer^[58]. It is important to note that the experiences of court in this study include a period when delays in court proceedings were exacerbated through COVID-19 and public health measures impacted the operation of the courts and associated services/response times as discussed in Chapter 1.

Getting to court, being at court and leaving court

The process of getting to court provoked feelings of anxiety for many participants. They were often fearful of meeting or being confronted by the accused and the accused's friends and family. Before going to court, participants described working with support and advocacy workers to carefully plan their transport and arrival at court in order to avoid the accused. However, several participants described occasions where such plans were not able to be implemented. This is exemplified in the extract below:

I felt great [before going to court], she'd [advocacy worker] mentioned about even if I'm in court, that I go in through like a separate access door and stuff like that. When I contacted the court and said that they suggested separate access or remote, they said separate access isn't doable, they don't actually have a different access door, so that one obviously…I don't know whether they do or not, but they said they didn't. (Adult 2)

The physical layout of court buildings and lack of separate entrances / exits for victims and witnesses left many participants feeling vulnerable and exposed. As highlighted in the extract below, entering and exiting the court building provided opportunities for the accused to intimidate vicitms and witnesses:

[…] he was sitting outside as if he was waiting to see if I was … who I was coming in with. And that's what I don't like. I think they should be completely separate because then that is pure intimidation. (Young complainant 1)

Some participants described queuing alongside the accused before and once they entered court buildings. During the COVID-19 pandemic, they reported being unable to stay in the building when court was not sitting (for example, at lunchtime) and having to sit in a car or go elsewhere, most had not planned for this and felt isolated and unsafe.

Many participants attended multiple hearings for the same case, and some were also victims or witnesses in other cases about domestic abuse involving the same accused. Several participants were involved in civil justice proceedings: for example, child contact cases that also involved the same accused. There were thus potentially cumulative impacts from going to court.

Witness rooms

Once court officals were aware participants were witnesses in proceedings, they were usually then escorted to a witness room. This offered a place to wait, before giving evidence, protected and kept away from the accused. While the safety that this offered was welcomed, many participants described feeling 'trapped' and uncomfortable in witness rooms. They felt it was unfair and were angry that they were unable to move freely in the court building but the accused was. These factors not only contributed to negative experiences of being at court, but also risked witnesses' ability to give evidence in proceedings. As these participants report:

Why are they not in a waiting area? Why do they get the freedom to walk around, and they can go to the toilet, and they can go to the café, and they can go out for fresh air, so they're at their best to go in and sit for their trial. We're not at our best because we're in a witness room, crammed in with other people that are also witnesses. It's hot, there's no windows that will open more than a crack, there's no air. (Adult 12)

I was just left in a room all day to…had to ask to go to the toilet in case they were wandering about. So, I felt like I was treated like the animal. Although they were just trying to keep me safe, I was just a bit like, hold on a minute here, like, why am I being treated like this? And it was a room that had no window. Couldn't see anything. (Young Complainant 3)

Delays at court and lengthy proceedings

Across the study participants described negative impacts on their wellbeing arising from repeated rescheduling of hearings and the length of time they had to spend at court waiting to give evidence. While some of this may be attributed to the pandemic, victims rarely ascribed, or reported being told, that this was the reason. One child explained the the impact of such an experience:

And then we went. And we got there, and they kept moving about rooms and then they changed the court, so we had to then move. And then we had to walk past dad quite a few times. (Child 3)

The child had to wait at court for seven hours before finding out that the case he had been cited to give evidence for was being rescheduled again. The child described feeling 'sad and angry' that he had had to wait so long and felt scared passing his dad in the court building.

For a minority of participants the length of time at court was because of the nature of the case: for example a trial for rape lasting several weeks. However, for the majority, participants reported that delays at court were connected to the way the case was managed. For example, the accused was late, plea bargaining taking place between the Procurator Fiscal and the accused's legal representation and, in one case, the wrong video evidence of another child not involved in the case being played in court.

Pleas and bargaining at court

Across the study, several adults and children had experience of charges being reduced or dropped on the day of court. Such plea deals and bargaining were often a source of confusion, coupled with feelings of disempowerment and frustration. Participants were often unaware of the rationale for such plea deals being made. This is exemplified by one adult victim:

Someone came into the court and basically said, 'We've done a plea bargain with [the accused], he's been charged on counts one and two have been put in, and counts three...And, I was like what? Has he been charged with this or charged with that? (Adult 1)

Pleas and bargaining were especially challenging in the context where participants had described experiencing a heavy emotional cost during the court journey - from reporting to the police, preparing for court, and then spending a considerable time waiting at court. Some participants felt that bargaining and late pleas unnecessarily extended court processes and saw them as examples of the accused's continued attempts to assert control over them. Pleas and bargaining were significant decisions and resulted in participants' evidence not being heard.

While some participants described feelings of relief at not having to give evidence, other participants described the process as being anticlimatic and feeling it was 'unfinished'. Participants reported anger and distress that their evidence and perspective was not heard by the court. They felt their attempts to access justice had been thwarted, as exemplified in the following extract:

The Procurator Fiscal came in and told me they got a plea out of him. It was a bit of mixed emotions, this is great, he's admitted it and I don't need to go in and my daughter didn't need to go in. I'm like right, is that it? 'Cause you work yourself up so much, I wanted to say my piece. (Adult 13)

Feeling 'out of control' of criminal proceedings

A persistent theme across interviews was the lack of status that victims and witnesses had in proceedings. There was a strong negative feeling that victims and witnesses were 'kept out' of the management of 'their' case. Participants did not view court proceedings or the management of the criminal case to be sufficiently orientated to victims and witnesses, they did not feel their needs, experience, knowledge or views were central. A significant concern amongst participants was that they did not feel that the case that was led at court necessarily reflected the extent of abuse they had reported^[59]. This was illustrated in the following quote by one adult participant:

I think that's what makes it harder, it's the knowing that he did this to me, and yet, it's not been recognised, like it wasn't mentioned in the court, it wasn't part of the trial, and, you know, it's almost like my injuries was irrelevant. (Adult 4)

One adult participant expressed the view that victims and witnesses should be able to give evidence regardless of whether a plea is reached. In this case, it was connected to a common feeling that the abuse that had been reported had not been fully recognised in the court process.

Most participants felt they did not meaningfully engage with the Procurator Fiscal (PF) and they perceived this as a fault in the process; several participants felt this led to the victim and PF being under-prepared at court. There were a small number of positive experiences. For example, one adult participant appreciated her 'quick chat' with the PF before giving evidence, she was reassured when the PF said she understood the victim's fear of being asked about dates and times,recognised this was a result of trauma and said she would take this into account in court. Such direct contact was rarely reported as part of participants' experience in this research. The most common feeling was that there was no-one 'on their side' at court. Participants felt strongly that court systems and processes marginalised victims and witnesses. The extract below gives lucid examples of how court processes can feel disempowering for victims:

There was no opportunity to sit down with the Procurator Fiscal, to talk about the process, what the likelihood is of what could potentially happen, what am I likely to be asked by the defence. Do you know, I feel the defendant seems to get their legal support and a lot of intensive kind of input, and as the victim of it, you get nothing. You're left kind of sitting in the dark and just not knowing anything. That [made me] feel completely powerless, I already felt completely out of control and powerless with the whole situation. I thought by doing this legally and trying to do the right thing, I'm going to try and take a bit of control back, but when we'd asked about speaking to somebody and so on, [I was] just shut down at every step, do you know, and I thought, that's not really helpful. (Adult 2)

Giving evidence

Across the study all 13 adults and four young complainants were originally cited as witnesses. Nine gave evidence in proceedings (8 adults, 1 young complainant) and in the remaining eight cases guilty pleas were submitted by the accused.

All participants reported being anxious about the prospect of giving evidence, concerned about being subject to any cross examination, the questions they might be asked and whether they would be believed. However, as noted earlier, giving evidence was viewed as an important part of telling the court about the abuse experienced and one of the few ways to be able to seek justice for it. Giving evidence, was also the only way that participants were able to participate in proceedings, as exemplified by one adult:

Because I had to stand up for myself. I had to tell that defence lawyer. Because nobody stood up for me in court, like there was nobody telling my story, nobody telling them how I saw things or what happened – I had to do that myself. (Adult 6)

This account shows how pressurised giving evidence can become, not just because of the experience of giving evidence but also because it was seen as the single opportunity that victims and witnesses had to ensure that they and their interests, the whole 'story' of their abuse, are directly represented in the court process.

Being cross examined

Many participants who gave evidence found the adversarial nature of cross examination to be traumatic and were often left feeling undermined and belittled because of the questioning they were subject to:

The second I came out of court, and I mean the second I got out that door, I just collapsed and broke down and said, 'No wonder,' – the first thing I said was, 'No wonder women don't go through that process, like they just cut out after that and go I'm not doing it.' The way I got spoken to and the way I got treated – no one even battered an eyelid at him, but I got called all the worse mothers, junkies, everything, absolutely every part of anything you could possibly do wrong as a mum I got accused of .... (Adult 6)

The impact of being cross examined is described by one adult:

I got taken back into the little room next to the door. And the policewoman came through. I didn't … I never knew the police in there. And the policewoman just said like, 'You did amazing.' And [the procurator fiscal] said, 'You answered everything.' She says, 'We've got everything that we needed.' But I just stood crying. And I think it was more the fact that his…the way his lawyer was to me. It just … even now … when I think about it now, I just felt stupid. She made me feel so small. (Adult 11)

Participants reported that during cross-examination, a focus on dates and times was especially confusing. They found that lengthy questioning, in some cases lasting hours, and not being able to review their statement in advance, acted to undermine their ability to give their best evidence in proceedings. These points were illustrated well in the following extract from an adult's interview:

I didn't see my statement, so I found it really difficult, and I was worried that it would come across that I wasn't confident that these events had happened, because she didn't say, 'On this date did this happen? Or on this date tell me about it?' She just said, 'Tell me about an incident that you were,' … you know, so she was leading … so I had to give the date, I had to give all the details and I found that I was worried about not being able to perform as well. (Adult 12)

A few participants reported that the Procurator Fiscal or Sheriff intervened, due to their treatment by the defence during cross-examination. While these interventions were welcomed, there was a strong sense across many participants that such interventions were not as frequent or as robust as they felt they should have been.

The behaviour of the accused during victim/witness cross-examination

Several participants identified the actions of the accused to be particularly undermining when they were giving evidence. They provided examples of the accused acting in ways that they viewed as deliberate attempts to disrupt their giving of evidence. The following extract from a young complainant provides a vivid example of this:

Like, even when I was sitting breaking my heart during the trial, he was sitting laughing. Laughing at me. And clinking his handcuffs. (Young Complainant 3)

A minority of participants reported that such behaviours were challenged during proceedings by Sheriffs and Procurator Fiscals, pointing again to the potentially protective role that they can have when victims and witnesses gave evidence. However, such challenges did not appear to happen routinely.

Special measures

Across the study all nine adults (including one young complainant) and two children who gave evidence had one or more special measures in place when they gave their evidence.

A strong theme from the data related to participants' frustration that access to remote videolink was not offered routinely to victims and witnesses. Several suggested that both adult and child victims' and witnesses' should be completely removed from the court arena in domestic abuse cases and supported to give evidence quickly and safely. Only one adult participant in this study got the opportunity to give evidence via remote videolink. He described having to 'fight' to get this special measure, as highlighted in the following extract:

When I phoned them and asked, I just said, 'Is there any way for me to give evidence from a different location,' and I was more told it was almost a case of, my case isn't extreme enough, sorry, that's how it kind of came across, that it wasn't important enough. (Adult 2)

Several participants raised serious questions about the adequacy of screens in offering protection or reassurance to victims and witnesses while giving evidence. This related to the close proximity of the accused and that victims and witnesses were still aware of the accused when giving evidence:

I had a screen, yeah. But he kept kicking his foot, so where he was sitting, there was a screen, but he kept kicking his foot out, to let me know that's where he was. (Adult 4)

Child witnesses

All five child participants were cited as witnesses but only two gave evidence in proceedings. In the three other cases pleas were submitted by the accused (two of which were submitted while children were waiting in court to give evidence). Both children who gave evidence did so remotely by video link (within the court building). For the remaining three who were cited but did not have to give evidence, two were offered a remote link and one was due to give evidence by commissioner.

Like adult participants, children were anxious about giving evidence. Despite efforts from those directly involved in proceedings, child participants thought that going to court was especially intimidating for children and that this was not always recognised or fully understood by those working in courts. As one child explained:

Like when I went, the procurator and the judge, they were nice. But sometimes they can be…they don't recognise that it's a ten-year-old kid they're talking to, they just treat them like an adult, like they can handle everything. But they can't because they're a ten-year-old and they're going to this big place. (Child 3)

Children appreciated being able to give their evidence outwith the court. This helped address some concerns that children, and other vulnerable witnesses, might have about giving evidence in person. The benefits were illustrated in this extract:

I think if I actually had to stand, like, in front of the [accused], or like, other witnesses there, and like, other people hearing my statement, I think that would have been a bit harder for me. Yeah, and I think if I broke down, he would see me, like, vulnerable, if I was standing in front of him when I was giving my statement. I didn't want him to know how weak he had made us. (Child 4)

While giving evidence remotely offered some protection, the protection was limited. There were similarities between children's experiences of giving evidence remotely and adults that were cross-examined in person. In the extract below, a child's mother reflects on her son's experience of being cross-examined and the ensuing impact on him:

The defence lawyer called him a liar several times in the court and said he was nothing but a little liar. To hear that, when he's gone through so much, to be told he was a liar. So [now] there's a lot of guilt from [my son] that he was accused of lying and obviously he was very worried about what was going to happen after that. (Child 1's mother)

A further and significant challenge for child witnesses related to court rules on the contamination of evidence. This meant they were unable to have the non-abusing parent with them while giving their evidence and then unable to talk about their experience of this until their parent's evidence was complete. While advocacy workers fulfilled an important role in being there with children, this was nonetheless distressing for children and their parent, as illustrated in the following extract:

[My daughter] had done her evidence, we weren't allowed to talk about anything. She couldn't tell me anything about how her court experience had been, she wasn't allowed to, which I found really hard as a parent. I couldn't support her at all. I had to keep saying to her, 'You can't tell me. You can't tell me anything.' It was horrible. (Adult 12)

While special measures should be available routinely to children, like with adults in domestic abuse cases, interviews with children revealed that, at least in these cases, their implementation was not smooth. This contributed to stress and anxiety for children and their parents. For example, one parent described that due to a technical problem with the video link, there was pressure on her child to give evidence in open court. Furthermore, it was not clear to participants why children in this study were not routinely offered the opportunity to give evidence by commissioner. Further research is needed to fully understand how special measures are implemented for children involved in criminal proceedings.

Support and information at court

Support and information provided by support and advocacy workers and others, like Victim Support and VIA, were viewed by participants as being critical in helping victims and witnesses feel safe, understand what was happening and advocate on their behalf when they were at court. They waited with participants, providing emotional support at what was an incredibly anxious and stressful time:

I was sitting in a car with that woman. And that woman was fantastic that day. I mean I just met her that day, but she was lovely, she was really nice. She helped support me all day that day. (Adult 6)

However, support and advocacy at court was a scant resource and at times some participants were left feeling not as supported as they perhaps might have wanted. Participants felt that the court service support did not necessarily meet the more holistic needs of victims and witnesses on the day:

You're definitely just left to it – that's it, completely unsupported. I mean even the Victim Support, she was allowed in to sit with me while I was through the trial, like she was allowed to sit there just to ensure that … I don't know, like I had somebody sitting with me. She was allowed in with me, but she wasn't allowed with me after it. As soon as I was out the court room, she had to take me to the front door and that was me. (Adult 6)

The potential for court to empower and provide closure

While going to court was not an easy experience for any of the participants, a minority viewed court as being a way to 'reset the terms' of the relationship between them and the accused. Court offered a way to become empowered and provide closure on the abuse that they had experienced and their relationship with the accused. In the extract below, an adult explains that giving evidence in court 'gave her a voice', it was a way to show publicly that the accused no longer controlled her, and she found it to be a cathartic experience:

I really wish my son and my daughter-in-law heard the way I was in court, because I know for a fact my ex would have been sitting behind that screen thinking, 'She's totally changed. She's got a voice.' Because he couldn't silence me in that court. He could not control me in that court, and I got everything I wanted to say out. And it was good. It was good. (Adult 3)

Likewise, another adult highlighted that going to court was a way to make public the abuse that had taken place and to ensure other women could become aware of what the accused had done:

I wanted him to admit that he was guilty but then the bottom line was, what if it made out that I was a liar and stuff? And I think in a way I wanted other people to find out. 'Cause his ex-wife was saying, 'God, I hope it goes to the papers so that other women are aware of what he is.' Just wanted the truth out, really. But there would have been a lot more came out and he knew that and that's why he pled guilty as well. (Adult 7)

Ways Forward from participants perspectives

Greater commmunication, engagement and collaboration between police, procurator fiscal and victims/witnesses in relation to the prosecution of the case, decision-making about the accepting of pleas and in relation to what evidence is led.

Effective communication of procedural and court decisions to victims and witnesses.

Giving evidence from a remote location should be the default special measure made available to all victims and witnesses in domestic abuse cases; a small minority of victims in this study wanted their 'day in court'.

Options for earlier, safer, pre-recorded evidence should be explored for all victims and witnesses to reduce trauma and promote trauma recovery; many participants in this study suggested removal of adults and children experiencing domestic abuse from court settings.