Improving victims' experiences of the justice system: consultation analysis

Introduction

Background

In May 2022 the Scottish Government launched a public consultation^[4] 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 was part of a wide ranging programme of work to transform the justice system and deliver the Scottish Government's Vision for Justice in Scotland^[5], which sets out priorities to bring about system-wide transformational change. The consultation had a particular focus on possible legislative reforms to help 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. The consultation was designed to support delivery of the Scottish Government's commitment to empower and protect victims of crime through improving justice services, as set out in the Programme for Government 2021-22^[6]. It also included proposals to appoint a Victims' Commissioner for Scotland, protect the anonymity of all complainers of sexual crimes, and progress consideration of the recommendations in Lady Dorrian's review^[7] of the management of sexual offence cases which require legislation to implement.

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 on human rights, equalities and protected characteristics, the United Nations Convention on the Rights of the Child (UNCRC), socio-economic equality, communities in the Scottish islands, privacy and data protection, businesses and the third sector and the environment 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.

Methodology

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. A small number who submitted online responses also sent complementary emails containing further detail or supporting documents directly to the Scottish Government to supplement their online response. These were analysed alongside the main database.

All responses were screened to ensure that they were appropriate and valid. Although some responses to individual questions were not appropriate or did not directly address the questions being asked, all feedback was analysed and is presented under the appropriate sections below.

The consultation contained a mix of both open and closed questions, including:

• 40 closed questions using a Likert scale where the options were 'strongly agree', 'somewhat agree', 'neutral', 'somewhat disagree' and 'strongly disagree', all with a free text box where respondents could give reasons for their answer^[8]
• 28 closed questions with multiple choice options of 'yes', 'no' and 'unsure' or lists containing between three and seven 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
• 16 open questions, with no limit to the length of response that could be given.

All questions were optional, as were the free text boxes.

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. Verbatim quotes were extracted in some cases to highlight the main themes that emerged. Only extracts where the respondent indicated that they were content for their response to be published were used and a decision was made to anonymise all responses as part of the reporting process.

Respondent Profiles

A total of 69^[9] responses were received - 24 (35%) from individuals and 45 (65%) from organisations. The table below shows the breakdown of organisations by 'type'. 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.

Base = 45

All who contributed written responses were asked to submit a Respondent Information Form (RIF) alongside their consultation response, indicating if they were willing for their response to be published (or not), either with or without their name. Just under two thirds of respondents (n=43; 62%) indicated that they were content for their response to be published (without their name), a quarter (n=18; 26%) were content for their response to be published alongside their name and the remainder (n=8; 12%) indicted that they did not wish their response to be published.

Report Presentation and Research Caveats

All tables in the following chapters show both the number and proportion of respondents who concurred with the different response options presented. It is important to note, however, that in many cases, large numbers of 'non-responses' were observed. In all tables, therefore, the 'valid percent' has also been shown (i.e. the proportion who said 'yes' or 'no' once the non-responses were removed). This gives a more accurate account of the strength of feeling among those who did answer the set questions.

For qualitative data, as a guide, where reference is made in the report to 'few' respondents, this relates to five or less respondents. The term 'several' refers to more than five, but typically less than ten. Any views that were expressed by large numbers of respondents (i.e. ten or more) are highlighted throughout, however, given the relatively small number of responses received overall, there were few questions where very obvious or dominant themes arose that were shared by large numbers of respondents.

The views presented below should also 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 (accounting for a third of all organisations that took part). There was also very close similarity in responses provided by several of these organisations, suggesting an element of collaboration in preparation and submission of responses. This does mean that there is an inherent skew in the findings towards the interests of this sub-group and this provides important context when considering some of the data presented below.

As demographic data were not captured as part of the consultation, it is not possible to ascertain which or how many of the views presented by individuals came from those who had personal experience of victimisation or trauma. There was also no reliable way of disaggregating the feedback given by individuals to explore differences in views between, for example, those who had previously experienced the justice system as victims, witnesses or perpetrators (and, indeed, some may have had experience of the system in multiple capacities). Some victims and witnesses who responded to the consultation provided personal testimonies or accounts which did not directly answer the questions asked as part of the consultation. These were read and relevant sentiments as they related to the consultation topics were extracted.

While it was possible to carry out disaggregate analysis of the data based on whether the respondent was replying as an individual or on behalf of an organisation, the analysis suggested that there were no notable differences in the main themes to emerge between the two respondent 'types'. This may be, in part, due to the fact that many of the individual respondents may have been replying as victims or witnesses, who therefore shared similar views and experiences to the organisations that represented them. While there were sometimes differences between different organisation types, the very small numbers of respondents in each organisation category means it would be misleading to classify these as clear themes. Instead, where appropriate, the reporting below sets out where views came from a particular type of organisation only where this aids or provides useful context for the views that was given.

While responses varied considerably in their length and technical complexity, all were treated with the same weight. Many respondents did not directly answer the questions that had been asked. Indeed, several respondents used the consultation to loosely structure a response, but instead of addressing specific questions presented an overarching view which allowed them to cover their main interests/concerns.

There was also evidence of respondent fatigue with later questions attracting fewer responses (especially to open-ended questions) and several respondents simply cross-referenced their answers to earlier questions instead of providing new or tailored responses for individual questions. Others also repeated the same general comments in response to different questions instead of offering more nuanced feedback. Indeed, some general comments were made about the length and inaccessibility of the consultation paper, especially for lay victims and witnesses, and this may have accounted for some of the repetition and non-response.

Finally, but crucial to the presentation below, legal organisations that responded to the consultation highlighted a fundamental concern with the use of the term 'victim' as used throughout the consultation. They stressed that there was a tension between labelling people the 'victims of crime' and the fundamental legal concept of the presumption of innocence (and that while victimhood was in some cases unquestionable, in other cases, the courts would legally refer to an individual who alleged criminal treatment as a 'complainer' until a conviction was in place). For some components of the consultation, therefore, where the term 'victim' had been used, caution was raised that this terminology may not be legally accurate (and that 'complainer' may be more appropriate). Similarly, while the terms 'victim', 'survivor' and 'complainer' have all been used interchangeably at various points in this 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.

The remainder of this report presents the findings from the analysis.