Improving victims' experiences of the justice system: consultation analysis

Executive Summary

Background

In May 2022 the Scottish Government launched a public consultation^[1] to seek views on potential legislative reforms aimed at improving victims' experiences of the criminal justice system, with a particular reference to the victims of sexual crime.

The consultation set out a number of proposals for legislative and system change under eight key areas, these being:

• establishing a Victims' Commissioner for Scotland
• options to underpin a trauma-informed and person-centred approach
• special measures to assist vulnerable parties involved in civil cases
• review of the requirement for people accused of crimes to provide details of their proposed defence in a statement provided to the court
• new statutory underpinning for anonymity for complainers in sexual offence cases
• independent legal representation for sexual offence complainers where a request is made to lead evidence in court which relates to their sexual history and/or bad character
• the potential establishment of a new specialist criminal court dealing with serious sexual offences
• consideration of issues relating to single judge trials for serious sexual offence cases.

A number of Impact Assessment questions exploring the potential impacts of the proposals were also included.

The consultation ran for 14 weeks between 12 May and 19 August 2022, and an independent research organisation was commissioned to carry out an analysis of the responses received. This report presents the findings from that analysis.

Respondent Profiles

A total of 69^[2] responses were received - 24 (35%) from individuals and 45 (65%) from organisations. There was a reasonable spread of different types of organisations that engaged with the consultation, including local authorities and public bodies, law enforcement and legal organisations. Almost a third of organisational responses (29%) came from victim and witness support organisations.

Consultation Structure and Analysis

The majority of responses were submitted via Citizen Space, the Scottish Government's online consultation platform, and were automatically collated into a database, downloadable to Excel for analysis.

The consultation contained 40 closed questions and 28 closed questions with multiple choice options (all with a free text box where respondents could give reasons for their answer and provide further details if it was asked for in the question). A further 16 open questions were included, with no limit to the length of response that could be given.

Closed question responses were quantified and the number of respondents who agreed/disagreed with each proposal or question statement is reported below.

Comments given at each open question were examined and, where questions elicited a positive or negative response, they were categorised as such. The main reasons presented by respondents both for and against the content included in the consultation were reviewed, alongside specific examples or explanations, alternative suggestions, caveats to support and other related comments.

Research Caveats

Given the relatively small number of responses received overall, the views presented in the report should not be taken as representative of the wide range of stakeholders invited to respond to this consultation, nor should they be generalised too broadly. They simply reflect the views of those individuals and organisations who chose to respond. Crucially, while there was a reasonably broad range of different organisations represented among respondents, there was a dominant presence of victim and witness support organisations within the sample, especially those that worked exclusively with women and girls. This provides important context when considering some of the data presented below.

It should also be noted that, while the terms 'victim', 'survivor' and 'complainer' are used interchangeably across the report, this reflects the words that were used by respondents themselves and may not always be the correct legal terms that should have been used in response to the questions that were asked.

Main Findings

Across the consultation responses, there were strong levels of support for almost all of the proposals posited. While some attracted a more neutral response than others, very few proposals were met with a negative response.

Establishing a Victims' Commissioner

There was considerable support for the establishment of a Victims' Commissioner including:

• agreement (across different sectors) that this role should be statutory and independent of the Scottish Government. Having such a footing would give victims and witnesses confidence in the Commissioner, it was felt, as being a neutral party
• using a combination of different reporting mechanisms was welcomed as a way of ensuring that the Commissioner remained accountable
• there was consensus across respondents that this appointment would help to amplify the voices, views and experiences of those affected by crime, as well as play an important role in working with relevant justice and support partners to influence decision making. Respondents also viewed that the Commissioner would play a crucial role in promoting best practice by criminal justice agencies and those providing services to victims, including championing a trauma-informed approach
• there was very strong support for the Victims' Commissioner to have accountability to, and engagement with, those with lived experience - the notion of focussed consultations with victims was particularly welcomed to help understand people's nuanced views and experiences, as well as making engagement accessible to all (including the most vulnerable)
• the main reservations were around the functions, powers, and remit of the new Commissioner, with several organisations stressing that the appointment must not duplicate the work already being done by others, but add to it. In particular, there was only moderate support for the Commissioner having the power to require persons to give evidence in the course of an investigation, and this was mainly resisted on the grounds of victim safeguarding
• there was also agreement with proposals not to give the Commissioner power to champion or intervene in individual cases, with views that, if they did so, it should only be in the interests of victims as a whole, or to drive institutional change in the wider public interest.

Options to underpin a trauma-informed and person-centred approach

Again, there was considerable support for the introduction of legislative and other changes to bring about trauma-informed practice and person-centred approaches with the proposals being viewed collectively as helping to make the justice system fairer, more accessible and less challenging for those required to participate in it. In particular:

• having a specific legislative reference to 'trauma-informed practice' as an additional general principle was welcomed, alongside specific reference to trauma-informed practice within the current legislative framework for the Standards of Service. A legislative basis for the production of guidance on taking a trauma-informed approach was also seen as useful for providing clear direction to justice organisations as well as helping to ensure consistency in practice and what victims could expect from the system
• the need for a clear definition of what constituted 'trauma-informed practice' was stressed, and the Scottish Government was encouraged to build on existing resources and work already being done, including the work of the NHS Education for Scotland (NES) National Trauma Training Programme
• there were some mixed views in relation to virtual summary trials. Their benefits were widely acknowledged (including reducing trauma associated with appearing at court, increasing accessibility and keeping victims physically separate from perpetrators), and they were seen as particularly valuable for victims of sexual assault, rape and domestic abuse (as well as for children and young people). Any attempt to 'force' the use of such measures on individuals was resisted, however, and respondents instead argued for a flexible system, which offered choice and empowered victims, to ensure that the system was victim led. Some legal organisations also questioned the impact of remote and digital alternatives to appearing in person, suggesting it may undermine the solemnity of the justice process, and some individuals also argued that such technologies may deny them their 'day in court'
• the extension of Ground Rules Hearings to all child and vulnerable witnesses was supported
• there were mixed views around whether the current legislative basis for court scheduling, as managed through the existing powers of the Lord President, was sufficient to guide trauma-informed practice. While some felt that existing powers were insufficient (as was evidenced by negative victim experiences linked to churn), legal organisations suggested that the complexity and unpredictability of cases going through the justice system meant that it would be difficult to adopt any system that totally eradicated the potential for court scheduling related trauma by those going through the system
• few specific suggestions were made for legislative changes which would assist in addressing the issues discussed around information sharing, although issues of consent for sharing information were stressed. It was also acknowledged that there was scope to improve information sharing between justice agencies.

The main reservations were linked to the need for the system to be 'trauma responsive' rather than simply 'trauma informed', i.e. there must be direct application of the principles of trauma-informed approaches into practice. There were also some doubts around how training, implementation and the adoption of trauma-informed practice within relevant organisations would be monitored. Questions were also raised around how non-compliance with trauma-informed practice would be addressed.

Special measures to assist vulnerable parties involved in civil cases

Again, proposals linked to special measures to assist vulnerable parties involved in civil cases were very well supported, including that:

• the courts having the power to prohibit personal cross-examination in civil proceedings would be particularly beneficial for victims of domestic abuse and in sexual assault cases, for whom cross-examination by the perpetrator can be particularly harrowing and retraumatising
• such measures would bring parity with criminal courts, and would allow victims in each domain to participate more effectively
• it may be helpful to extend the scope even further in relation to who is deemed a 'vulnerable witness'
• barriers to extending special measures may exist in terms of lack of equipment with insufficient resourcing and capacity to meet demand.

Review of defence statements

Respondents supported the need for a review of the requirement for people accused of crimes to provide details of their proposed defence in a statement provided to the court. It was generally agreed that:

• existing legislation did not work in this regard, often to the detriment of victims, who did not know what to expect in court. This could lead to or compound negative experiences for victims appearing at court
• the current legislation allowed legal representatives acting for the accused to use defence statements as a means of stalling or delaying case progress and this should be challenged
• the introduction of a system or framework whereby victims could access details of defence statements in advance would form part of a trauma-informed approach to justice.

Anonymity for complainers in sexual offence cases

The introduction of a statutory right to anonymity for complainers in sexual offence cases was welcomed across the board, with views that:

• the right to anonymity should take effect when an allegation of sexual offence is made to ensure anonymity at the earliest opportunity, and reduce risks of inadvertent disclosures
• anonymity, and the right to waive anonymity, should always be an individual's choice and should never be forced. Decisions over when it should end should be made on a case-by-case basis considering the views and needs of all parties involved
• automatic right of anonymity should apply to the very widest range of offences, as well as apply to children and young people. However, additional protections should be in place to make sure that all decisions made in relation to setting aside anonymity are fully informed (and taking into account the age, stage and capacity of any child/young person or other individual needs of the victim in question)
• another issue raised, although only noted by a minority of respondents, was that decisions made to set aside anonymity also need to carefully consider any risks or unintended negative impacts for the anonymity of other parties
• the main proposals that split opinion were whether the court should have a power to override any right of anonymity in individual cases and whether the right of anonymity should expire upon conviction of the complainer for an offence against public justice
• there was little consensus around suitable penalties for breach of anonymity. However, comments generally reflected that this would be a positive step, and that penalties should be serious enough to act as a deterrent but also be proportionate and tailored to the particular case in hand (while also considering the intent behind the breach).

Independent legal representation for sexual offence complainers

There was very strong support for an automatic right to independent legal representation (ILR). This was seen to be a way of considerably improving understanding among complainers, achieving fairness for complainers, and ensuring that their rights and interests were better represented in court. In addition:

• respondents stressed that complainers should have the same right of appeal as the Crown and defence, and this proposal would allow for that
• respondents viewed that proposals in relation to ILR would lead to greater equality and parity between complainers and the accused, and that access to justice would be widened if ILR was legal aid funded
• the majority of respondents strongly agreed that a right to independent legal representation for complainers should apply during any aspect of criminal proceedings in respect of applications under section 275 (including where an appeal is made) and at all stages of the justice journey
• there were some concerns around how these provisions may impact on court processes and the time taken for cases to progress through court, however, the main view was that ILR would improve complainer/victim satisfaction with the criminal justice process overall.

New specialist criminal court dealing with serious sexual offences

There was support (albeit not as strong as for some of the other consultation proposals) for a specialist sexual offences court to deal with serious sexual offences, including rape and attempted rape. There was less clear feedback in relation to whether this should be a new court for Scotland, separate from the High Court or the Sheriff Court, or where it should sit. Other main feedback included:

• strong agreement that, if such a court is created, it should have jurisdiction to hear cases involving charges of serious sexual offences, including rape, as well as non-sexual offences which appear on the same indictment
• views that there should not be a separation of the offences on the same indictment, and that there should be no duplication of the process for complainers, witnesses or the accused (to minimise trauma associated with the court process)
• consensus that the court should have access to the full range of sentencing powers required by the types of cases being heard, with no sentencing limits
• support (albeit not unanimous) for such courts to be presided over by sheriffs and High Court judges, however, relevant training for the judiciary overseeing cases was viewed as more important than their jurisdiction. Similarly, trauma-informed training for legal professionals and others working in such courts was seen as essential.

The main caveat for support was around the potential for the downgrading of cases, both for serious sexual offences being heard in the new court if this is perceived as lesser than the High Court (where serious sexual offence cases such as rape are currently heard), and for those involving serious sexual harm but where a sexual offence was not charged (which would not be eligible to be heard in such a new court). Lack of resources to ensure smooth and effective operation of such a court was also posited as a potential risk.

Single judge trials for serious sexual offence cases

There were more mixed views in response to questions in this part of the consultation compared to those in other sections. While some felt that the current jury system contained too many biases and was potentially very traumatic for complainers, others felt that the current system already struck an appropriate balance with only marginal potential for greater efficiency of court process if a new approach was adopted. There was also very mixed feedback on whether trials before a single judge, without a jury, would be suitable for the prosecution of serious sexual offences, including rape and attempted rape, and only moderate support for a time limited pilot of single judge trials for offences of rape, which it was felt could be challenging to operate. Where respondents did agree was around the need for eradicating unconscious bias, achieving greater diversity in the pool of decision makers, and addressing lack of specialist training, knowledge and experience in working with victims of sexual assault and trauma.

Differences in views by respondent type

Due to the relatively low numbers of overall responses, and with only 45 organisational responses overall, it was difficult to extract any notable differences in views by respondent 'type'. It is also worth stressing that there was a great deal of congruence between responses given from individuals and organisations (particularly victim and witness support organisations), as well as organisations representing different sectors, and support was noted for most proposals among all respondent groups. The only clear skew in views presented by different respondents were that:

• victim and witness support organisations stressed the need for proposals to be taken forward in close collaboration with those already offering support to victims, as well as directly with those with lived experience. A focus on women and girls was also often reflected in the feedback given by such organisations, with suggestions that some of the proposals could be strengthened further to safeguard the most vulnerable victims, including those involved in sexual offences cases and domestic abuse. Most notably in relation to the Victims' Commissioner, but also in relation to other areas of proposed reform, those in this sector also stressed the need to avoid any duplication in functions and roles already being fulfilled by others when implementing changes
• children and young people's support and advocacy organisations, and those in the third sector suggested that more nuanced and detailed consideration of the needs of children and young people and those with learning or other disabilities could have featured more prominently in the consultation (and should be kept in mind when taking forward the proposals). Again, the need to avoid any overlap with existing operation/functions of the Children's Hearings System and the Children and Young People's Commissioner was encouraged and, indeed, they stressed the need to work closely with such bodies in any 'next steps'. This cohort also specifically encouraged greater detail on how the proposals to underpin a trauma-informed approach in legislation would complement the establishment of the Bairns' Hoose model^[3]
• support among public bodies and local authorities was often caveated by the need for further thought and consideration being given to how changes would be resourced and how staff could access relevant training, as well as concerns around time and capacity to take on board changes and how changes would be monitored and enforced
• legal and law enforcement organisations were more likely to stress the need for any legislative change to take a balanced view that recognises the adversarial nature of the justice system. This would mean giving equal credence to the views, experiences and needs of those accused of crime, who were presumed innocent until proven guilty (especially their needs around trauma-informed approaches and processes required to ensure that justice remains accessible, fair and transparent for all). They were also more likely to encourage consideration of how the proposals may operate in practice and the implications the changes would have on legal systems and professionals operating across the system - whilst still being mindful of any benefits for complainers and victims.

Conclusion

Almost all proposals were well supported as a means of helping to deliver a more trauma-informed and person-centred justice system for victims and survivors, while at the same time still ensuring fairness to the accused. Respondents encouraged ongoing further engagement with the Scottish Government, at both the front-line and strategic/governance levels, to ensure that there remained an opportunity for input from interested parties in taking the proposals forward.