Domestic Abuse (Scotland) Act 2018: interim reporting requirement

5. Evidence on Victim and Witness Experiences of Domestic Abuse Court Cases

Main Findings

• Overall, the evidence on victim and witness court experiences suggests the continued existence and/or the exacerbation (due to the COVID-19 pandemic) of known issues relating to the experiences of vulnerable witnesses at court; rather than new issues specific to or resulting from the Act.
• Reports of a lack of communication, involvement and/or explanation of procedures and decision-making was a common theme across the research. This was reported to exacerbate victims' stress when attending court and contribute to feelings of powerlessness and marginalisation throughout.
• The research reported on the negative impact of court delays, as well as other procedural matters including late pleas and bargaining, on both adult and child victims/witnesses' mental wellbeing.
• Kind and empathetic treatment was reported to make a significant difference to victim/witness experiences of the justice system, including their court experience.
• The vital role that advocacy and support services played in improving victim/witness experiences of court was emphasised. Gaps in service provision were identified, particularly earlier in the process (after reporting) and after the court case had concluded.
• A common theme was that safety was not consistently ensured for victims and witnesses (and their families), with reports of continued abuse at all stages, including at court and post sentencing.
• Going to court was reported as difficult and distressing by most research participants, and particularly intimidating for children. For some victims, it was reported that going to court could be empowering and provide a sense of closure. Overall, special measures were welcomed although some research participants said they were not always seamlessly implemented or tailored to individual needs.
• Other issues relating to child victim and witness experiences at court included negative experiences of cross-examination, and court rules on the contamination of evidence which restricted child to parent contact.

As noted in Chapter 3, the Act also provides for a number of reforms to criminal procedure, evidence and sentencing which are intended to reduce the possibility of an accused person using the justice system to further exert control and influence over the complainer and to help to minimise the trauma for the complainer while ensuring the proper administration of justice is achieved (as set out in the Policy Memorandum).

This section presents the research evidence gathered to meet Section 14(f) of the reporting requirement. It is drawn from three research studies which included two victim experience surveys and one in-depth interview-based study involving victims and witnesses, including children and young people. The reports can be accessed via the following links:

An online survey for female victims of domestic abuse

Domestic Abuse (Scotland) Act 2018 and the Criminal Justice System: Women's experiences two years in the emerging findings (SCCJR, 2022)

An online survey for male victims of domestic abuse

The Domestic Abuse (Scotland) Act 2018: emerging findings of male victims' experiences of the Criminal Justice System (Scottish Government, 2022c)

In-depth qualitative research with adult and child victim/witnesses

Domestic Abuse Court Experiences Research: The perspectives of victims and witnesses in Scotland (Houghton et al., 2022)

Justice, Safety and Support: what children and adults told researchers about the new law on domestic abuse. (Scottish Government, 2022d)

Throughout Chapters 5-8 the research reports are referred to as the 'women's survey report', the 'men's survey report' and the 'qualitative research report' (the interview-based study). Chapter 10 provides a summary of the methodologies used in the research projects.

As noted in the Introduction, the research was not strictly limited to experiences at court but also covered the wider 'justice journey' (see Chapter 7), and victim and witness views and experiences of key aspects of the new legislation including the prosecution of psychological abuse, experiences of non-harassment orders and the child aggravator (Chapter 6). This reflects the way in which research participants described their experiences and provides useful context for understanding victim and witness experiences of court. It also allowed a victim-centred approach to be taken^[13] and recognised that some participants found the system confusing, and that distinguishing between different stages, organisations and legislation/charges was problematic. Recognising that victims/witnesses in the research were often unaware of the legislation and/or which charges were brought (where relevant), findings relating to victims' perceptions of the Act (Chapter 6) are tentative.

Given the small sample sizes (number of research participants), the findings cannot be generalised to domestic abuse victims and witnesses as a whole. This, alongside a context of early implementation of the Act and the impact of the COVID-19 pandemic on the justice system, means that it is not possible to draw firm conclusions from the evidence at this stage.

General findings on court experiences of victims and witnesses

The evidence on court experiences is drawn from a sample of approximately 30 victims/witnesses^[14]. Most of the evidence on court experiences is based on the qualitative research which involved interviews with 22 adults, young complainers and child victims and witnesses who were involved in a domestic abuse court case during the first three years of the implementation of the Act.

• Overall, the evidence on victim and witness court experiences suggests the continued existence and/or the exacerbation (due to the COVID-19 pandemic) of known issues relating to the experiences of vulnerable witnesses at court, rather than new issues specific to or resulting from the Act.
• Reports of positive experiences of attending court were limited. Positive experiences were associated with research participants' feelings of safety, a sense of control and choice (e.g. in how/where to give evidence), the extent to which they felt informed/involved in court procedures and decisions, and, the extent to which their treatment by professionals was trauma-informed (i.e. whether they felt listened to, believed, respected and supported).

"From my own experience, I felt valid and listened to. I felt the system was successful." (Women's survey report, p41)

"Excellent service from Police. Procurator Fiscal's Office and support organisations." (Men's survey report, Respondent 11, p19)

• There was insufficient data to report on male victims' experiences of court (as so few cases in the sample reached court). However, overall, the men's survey report found that the majority of respondents reported feeling that there was a system-wide gender bias against them. The majority of respondents felt that their experiences of abuse were minimised and that they were not taken seriously or believed by the justice system. This is covered in more detail in Chapter 7.
• It is interesting to note that whilst research participants voiced concerns about court delays and adjournments, as well as other matters relating to poor information provision and communication, participants did not raise the COVID-19 pandemic in and of itself as a specific issue.^[15]

Preparing for court

• Long delays whilst waiting for trials and waiting to give evidence was reported to have negatively impacted on victims' and witnesses' mental health.
• Alongside delays, the majority of children and adults interviewed expressed anxiety due to uncertainty about the court process and a lack of information or opportunity to ask questions.

"I had to keep phoning ... because nobody was bothered, like nobody was contacting us and I was, like, I feel so unprepared. I feel unprepared. Reading the court document, I just feel that we don't know anything about what we've to do, we don't know anything about…" (Adult 12, Qualitative Research Report p46)

• Lack of communication about or involvement in decision-making was a common theme across the research. Some research participants reported in interviews that they were not kept adequately informed about the progress of cases. Similarly, it was reported that citations to appear in court were received via a variety of routes, and, in most cases, preceded court-related support. These issues were reported to have heightened victims' and witnesses' anxiety about court, particularly where the rationale for decisions was misunderstood and last minute pleas or bargaining were involved.
• Not having control over when and/or whether victims and witnesses would need to give evidence, and, in some cases, in what form (evidence by commission, in court etc.) is reported to have contributed to participants' feelings of marginalisation, as well as undermining their trust in the system.
• The vital role that advocacy and support services provided in helping victims prepare for court was highlighted e.g. arranging special measures.

Giving evidence and attending court

• Overall, special measures^[16] were welcomed by victims and witnesses in the research. However, some issues were raised in relation to limited choice and individual needs not consistently being met e.g. one young complainer in the qualitative study was reported to feel a loss of control and anxiety about the accused being able to see her when giving evidence remotely.
• When interviewed, adult victims and witnesses who gave evidence (a total of 11^[17]) expressed a strong preference for providing their evidence remotely. However, only one adult participant was able to give evidence via video link. A further issue raised was the proximity of the accused to the victim when they were giving evidence behind a screen.
• Going to court was reported as difficult and distressing for most research participants. The research reports that many participants were fearful of meeting or being confronted by the accused and the accused's friends and family. Lack of a separate exit/entrance for victims/accused was reported as problematic, increasing the risk of having to queue alongside the accused before entering the court building. Even where safety was provided at court e.g. by separate waiting rooms for victims, there is evidence that some participants reported feeling 'trapped' and uncomfortable.

"I was asked to appear early so that I would not cross paths with my attacker, having arrived early I was asked to go to a witness room upstairs. Going there I crossed the path of my attacker before getting into the court room. Was then told that the court had moved room and had to go to another witness room, once again crossing the path of my attacker […]" (Respondent 13, Men's Survey Report p.19)

• Participants who gave evidence found the adversarial nature of cross examination distressing. Lengthy questioning, a focus on dates/times and not being able to review their statement in advance was felt by victims and witnesses to undermine their ability to provide the best evidence.

"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, Qualitative Research Report p57)

• Although welcomed where it occurred, some research participants felt that there was a need for more frequent and robust interjections by the Procurator Fiscal or Sheriff during cross-examinations and in response to the sometimes intimidating behaviour of the accused at court (e.g. laughing).
• Despite this, for some victims, it was reported that going to court could be empowering and provide a sense of closure, particularly when support and advocacy was provided.
• Kind and empathetic treatment was reported to make a significant difference to victims' and witnesses' experience of the justice system, including their court experience. However, some research participants felt that professionals did not always comprehend the emotional impact of the court process.

Sentencing and court outcomes

• It was reported that many victims and witnesses in the research felt that sentences were too lenient and did not reflect the severity of the abuse.

"To be honest I still don't understand why the judge or sheriff would be so lenient on him at the same time lifting the restrictions of the non-harassment order that made me feel like the justice system does not care for the safety of women and children" (Women's Survey Report p40)

"I feel let down by the courts […] despite conviction the sentence of absolute discharge gave the perpetrator the message that she could continue to control me." (Men's Survey Report, Respondent 16, p19)

• The qualitative (interview-based) research reported that some research participants felt excluded from and disempowered by court case outcomes, particularly decisions concerning 'plea bargaining' where an accused may plead guilty to some but not all of the charges against them^[18]. Whilst some felt that these kinds of decisions denied them 'their day in court', others were reported to feel relieved that that they did not need to attend court.
• Where the accused was found not guilty, participants were reported to be especially negative about the justice system and expressed feeling vulnerable following removal of bail conditions and other protective measures.
• There were a range of views about the efficacy of Non-Harassment Orders (NHOs) as a protective measure. This is discussed in Chapter 6.

Support during and after court

• Specialist support and advocacy services, where available, were highly valued by victims and witnesses in the research. It was reported that research participants felt support workers played a crucial role in ensuring that their needs were taken into account by the prosecution (e.g. special measure requests) and the courts (e.g. views on NHOs), and were vital for improving their experiences of court.
• Across the research, support and advocacy services were reported to play an important role in minimising trauma and distress.
• Gaps in support provision were highlighted in the qualitative research report, particularly earlier in the process (after reporting) and post court.

Children and young people's experiences of court

The findings below are based on interviews in the qualitative research with five child cited witnesses (aged 12-17)^[19] and the views of parents whose children were cited as witnesses^[20]. Given the small number, it is not possible to draw firm conclusions from these findings at this stage. That said, the findings broadly echo those of pre-pandemic research^[21].

• As with adults, the research reported on the negative impact of court delays on child victims'/witnesses' mental wellbeing.
• The lack of regular communication, involvement in and/or explanation of procedures and decision-making was also raised as a concern by child witnesses and parents. For example, several children (and their parents) believed that they would do a video-recorded interview. When they then received citations for children to attend court this was unexpected and a source of anxiety for both children and adult victims.
• The close timing of citations to court dates was reported to allow minimal time for children to prepare. A further issue was the lack of choice that parents had in whether children were cited, with a small number (2) withdrawing from their case to try to prevent this. Related to this was an example of a child wishing to withdraw, after establishing a relationship with his father, and being prevented from doing so.
• It was reported that going to court was especially intimidating for children and that this was felt by some research participants to not always be recognised or fully understood by those working in courts.
• Although special measures were offered to all child cited witnesses it was reported that they were not always seamlessly implemented. The research questions why children in the study were not routinely offered to give evidence by commissioner.
• Like adults, giving evidence was reported to be a stressful experience for those children involved. Although the protection offered by giving evidence remotely was welcomed by children (and parents), the experience and impact of cross-examination was reported to be distressing for some.

"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, Qualitative Research Report p59)

• Another challenge for children and parents at court was the effect of the rules on the contamination of evidence, which meant that children were unable to be with their non-abusing parent when giving evidence or to discuss the case with them until their parent's evidence was complete. Whilst support was provided by advocacy workers, this was nonetheless reported as distressing for both parent and child.
• A further but significant point on child contact was the reported cumulative negative impacts on child victims and witnesses where the family was involved in both criminal and civil justice (family court) proceedings.
• Like adults, it was reported that advocacy and support was highly valued by children, young people and parents as a means for minimising trauma. The need for children to have access to support at all stages of the process, including post-court, for as long as they need, was emphasised.
• Evidence on the experiences of young complainers is limited due to the small number of interviewees (n=4)^[22] but appears to broadly equate to those of adult and child victim/witness experiences of court. The qualitative research report indicates that there is some evidence that the rights of 16 and 17 year olds in need of protection may have been overlooked e.g. when reporting abuse. Further research is needed to understand on young complainers' experience of court.
• Views on the application of NHOs for children were mixed. This is covered in the next section.