Improving victims' experiences of the justice system: consultation analysis

Cross Cutting Themes and Other Observations

Cross-cutting themes

The main cross-cutting theme throughout the consultation was the need for all proposals and legislative changes to be victim led. Victim choice and the need to retain flexibility in the system were also encouraged in relation to various proposals. Several respondents highlighted the complexity of the justice system and the various ways through which individuals may become involved with the system, and viewed that a 'one size fits all' approach would never be appropriate. Maintaining an open dialogue with those with lived experience, their representatives and advocates, in taking forward the consultation proposals was seen as key to a system that responded to victims' needs and led to the level of empowerment that was desired, instead of victims simply feeling that they were part of an evidence chain.

Increasing accessibility to the justice system for complainers (both physically through greater use of technology and legal aid, and figuratively through removal of jargon) was also stressed throughout. Again, this was seen as especially important for the most vulnerable victims and witnesses, including children and young people and those with learning disabilities. The strong support for many of the proposals linked to trauma-informed practice in particular was based on a belief that such changes would improve not only the victim experience, but also the quality of evidence given by victims (to the advantage of the justice system as a whole).

Another cross-cutting theme was the need for victims to receive additional support alongside the various system changes proposed, with specific suggestions that any legislation seeking to improve victim's experiences must include a right to mental health and wellbeing support at all stages of the journey. The right to independent advocacy and legal representation were both highlighted as key to assisting victims, and additional resourcing to allow access to such support was encouraged (including changes to legal aid funding).

While there was considerable support for legislative changes to be person centred and victim led, it is important to note that several organisations (including legal organisations) and some individuals (including those reporting personal victimisation) argued throughout the consultation that changes must not be exclusively victim focussed. Any legislative change must also consider the needs of accused and their families/supporters, in a system where people can often have multiple and co-existing experiences of being both victim and perpetrator. This was especially true for children and young people, and special attention should be given to this cohort to ensure the system is trauma informed and trauma responsive to their needs, regardless of how they come to be a part of the system.

Another common theme (especially among organisations in the public sector) was that any legislative change must be supported by adequate resource to allow for robust implementation. A number of organisations (including law enforcement organisations, local authorities and others) noted that the consultation was lacking in its reference to what was described as "chronic underfunding and under-resourcing in almost all aspects of the justice system". Specific concerns were related to the impact of court workloads (including a COVID-19 backlog), fewer physical courts, perceived insufficient funding of legal aid, staff shortages in various justice agencies (including the police), and lack of resources for adequate implementation of proposals. All of these were seen as potentially having a direct negative influence on complainer/victim experiences and some respondents felt they should have been given more consideration across the consultation.

Similarly, funding and plans to support training of all staff who may interact with victims in the justice system was encouraged. This included training primarily in trauma-informed practice, but also in such things as domestic abuse awareness, and training around mental ill health and learning disabilities and how these interact with the victim experience.

Finally, while almost all of the proposals across the consultation were welcomed and received strong support, there was also a general underlying concern that all changes would only result in meaningful change (and positive impacts for those involved in the justice system) if accompanied by significant cultural change in the justice system. This was seen as a more fundamental challenge, especially given the adversarial nature of the justice system, but one that was necessary to address if systems and processes were to become truly trauma sensitive and the desired transformation achieved.

General Observations on the Consultation

Some more general observations on both the consultation process and consultation clarity were also raised.

On the process, respondents noted that the consultation had been challenging to respond to, i.e. the breadth of the consultation was "huge" and "the language used often complex and difficult to understand", including lots of legal jargon. A number of respondents noted that it was not accessible to the general public or vulnerable groups and so was unlikely to capture lived experience. One organisation suggested that the consultation expected too much of respondents on the issue of impact assessments.

The consultation was also carried out over the summer holiday period, and a small number of respondents suggested that this may have resulted in a lower response rate than might have been expected if it had been run at a different time (and may also have precluded some who wanted to take part from doing so).

Comments were also made throughout various sections of the consultation in relation to children and young people with a sense from respondents that greater clarity could have been offered on the how the various proposals would directly impact on them. As above, these comments came mainly from organisations already working with children and young people. In particular, there was seen to be a lack of reference to existing legislation and processes/supports already in place to protect the unique needs and interests of children and young people and consideration of how these would overlap with the new proposals.

On a related note, comments were made that several proposed reforms (while positive in their ambitions), could impact on existing legislation and system processes to their detriment, i.e. there was a danger of a ripple effect in a justice system that is complex and interconnected, and where one change might have consequences that are unintended or are greater than expected. One local authority/justice partnership organisation suggested that this was particularly so for local government, who play a crucial role in Scotland's justice system and would be affected by some of the proposals in the consultation. Any potential changes stemming from the consultation exercise with potential impacts on local government would require further engagement with them, as well as detailed consideration of possible resource implications for local authorities, it was suggested.

Finally, a number of organisations 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.