Improving victims' experiences of the justice system: consultation analysis
An independent analysis of responses to the consultation on improving victims' experiences of the justice system which ran from 12 May 2022 to 19 August 2022.
Establishing a Victims' Commissioner
The Scottish Government committed to establishing a Victims' Commissioner in the 2021-22 Programme for Government. This is in line with the priority they place on hearing victims' voices and offering approaches to justice which place victims at the heart. The first part of the consultation sought views on the more detailed aspects of how this role should be established.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 43 | 62% | 88% |
| Somewhat agree | - | - | - |
| Neutral | 2 | 3% | 4% |
| Somewhat disagree | - | - | - |
| Strongly disagree | 4 | 6% | 8% |
| No response | 20 | 29% | - |
Base = 69
The majority of respondents (88%) strongly agreed that the Victims' Commissioner should be independent of the Scottish Government.
The main reasons given in support of independence (across all respondent types) were that political interference should be avoided to minimise risks that the role was subject to changing political tides, as well as to maintain impartiality/neutrality, fairness and transparency. Several victim and witness support organisations also indicated that independence would allow for a more credible system of handling complaints and reporting of potential failings within the justice system:
"An independent Victims' Commissioner is crucial as it avoids any political influences that could interfere with the processes and outcomes of any work carried out. It also ensures that the victims lie at the heart of the commissioner's work, rather than being swayed by any political opinions and pressures of the time." (Individual)
Linked to this, however, was some cynicism that the Commissioner would ever be able to achieve complete independence from Government, given that reporting of non-compliance by justice agencies would always result in some degree of self-regulation by public bodies. Particular concern was raised in relation to police practice, and how any complaints overseen by the Commissioner would ultimately be dealt with, as well as the lack of the separation of power between the Crown Office and Procurator Fiscal Service (COPFS) and the Scottish Government (with a perception that there was limited accountability and independence of COPFS). The general sentiment was that the Commissioner should be able to hold the Scottish Government and partners to account to ensure that victims' experiences are at the centre of the justice process:
"The role should be focused on the interests, needs and welfare of those who have been harmed by crime. As such, [organisation] strongly agrees that the Victims' Commissioner should be independent of the Scottish Government. This will enable the Commissioner to remain politically neutral and ensure they are able to challenge any policies, processes, and practices as needed." (Other (third sector))
Another reason given in support (by individuals and support organisations) was that independence would generate greater trust and confidence in the role in the eyes of victims and the wider public. In particular, it was felt that victims/survivors often found criminal justice structures and processes challenging and that independence would enable the Commissioner to challenge structural barriers to justice:
"Many victims feel a sense of distrust towards the justice system and thus the Government, so I think its independence is essential to better establish a rapport with victims." (Individual)
One children and young people's advocacy/support organisation similarly expressed that independence would also afford greater freedom to the Commissioner themselves in speaking freely on issues affecting victims and witnesses, without feeling compromised.
Other organisations argued that independence would provide parity with the Children and Young People's Commissioner Scotland, and that this was key given that both were likely to work closely alongside one another going forwards:
"As with the Children's Commissioner, the Victims' Commissioner should be independent to the Scottish Government. This will promote independent functions to ensure the views and experiences of child (and all) victims are heard and acted upon, allowing them to independently carry out the functions of the role, investigate and prepare reports, and make recommendations to Scottish Government and other agencies/organisations. There is likely to be an overlap with the role of the Children's Commissioner." (Other (academia))
All four who strongly disagreed with this proposal were victim and witness organisations who disagreed with the concept of a Commissioner entirely, and as such did not answer the question directly. Among them (and some who did not answer the closed question) the main view was that the creation of a Victims' Commissioner for Scotland would not add any value to the work already being carried out across Scotland to support victims of crime, particularly those currently offering support to tackle violence against women. Views were expressed that the creation of such a role may, in fact, duplicate work already being done and/or reduce the resources available for this work to be continued by others (such as existing national and regional victim and witness support agencies). The implementation of changes may also take time, with knock on negative impacts on services currently being delivered/received by victims during the setting up period.
Similarly, one public body raised concerns that the Victims' Commissioner may overlap with the work already carried out by those such as the Children and Young People's Commissioner, Equality and Human Rights Commission and the Scottish Human Rights Commission. In particular, they pointed out that one of the proposed functions of the Victims' Commissioner would be raising awareness and promotion of victims' interests and rights and that there would be significant scope for overlaps in this regard with the Children and Young People's Commissioner:
"…we consider that the proposed role should be established by legislation, which clearly sets out the Victims' Commissioner's functions and powers. Any legislation should be drafted to avoid, as far as possible, any cross-over in remit and responsibilities already held by any other organisation in Scotland. We consider that addressing any potential overlaps in remit and responsibilities through legislation is preferable to proceeding by way of Memorandum of Understandings between bodies." (Public body)
Other neutral respondents observed that they would simply support the Commissioner, if the post was created. However, one commented that further consideration would be needed around how the proposed Commissioner's function to include monitoring compliance with the Standards of Service for Victims and Witnesses would interact with the current legislative provisions under the Vulnerable Witnesses (Scotland) Act 2014.
One children and young people's advocacy/support organisation responded here, and throughout the remainder of the consultation, by expressing disappointment that the current consultation made no reference to the Scottish Government's clear commitment to embed Bairns' Hoose[10] across Scotland:
"Although we can see that the document states that the 'improving victims experiences' work is part of an "extensive programme of work (being progressed) to modernise our justice system," we are extremely concerned that there is no specific acknowledgement of the significant transformation that Bairns' Hoose will mean for child victims and witnesses. The consultation document fails to take into account the role of the Bairns' Hoose in improving victims' experiences of the justice system, the importance of Bairns' Hoose as a transformational change for child victims and witnesses, the potential link between a Victims' Commissioner and a Bairns' Hoose and the way in which a Bairns' Hoose would interact with the changes contained within these proposals." (Advocacy/support organisation (Children and Young People))
This view was endorsed by one public body who also welcomed further clarity on how the proposals to underpin a trauma-informed approach in legislation would complement the establishment of the Bairns' Hoose, as well as how the Victims' Commissioner and Bairns' Hoose would interact.
Other more general comments included that:
- these new proposals must have a clear implementation plan, allocated resources, and sit firmly alongside all the other progressive reforms that have been passed and legislated for
- the resulting Bill must be compatible with the UNCRC, given the commitment made by the Scottish Government to incorporate the UNCRC into Scots Law (including ensuring that a 'child' is as defined in Article 1 of the UNCRC as anyone under the age of 18).
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 39 | 57% | 81% |
| Somewhat agree | 5 | 7% | 11% |
| Neutral | 2 | 3% | 4% |
| Somewhat disagree | - | - | - |
| Strongly disagree | 2 | 3% | 4% |
| No response | 21 | 30% | - |
Base = 69
Again, the large majority of respondents (81%) who answered this question strongly agreed that the Victims' Commissioner should be a statutory role.
The main reasons given in support (across all respondent types) were that making the role statutory would ensure transparency with regard to the remit of the role and powers of the office holder, bringing with it clear lines of responsibility and accountability, and making clear the scrutiny, reporting and review mechanisms.
Making the role statutory was again seen as being necessary to give victims confidence in the person representing them, as well as providing stability:
"…a statutory role will provide the status necessary to instil trust and confidence in the process. It also provides longevity to the role and cannot simply be ended." (Victim/witness support organisation)
Among support organisations in particular, the statutory status was also seen as giving the Commissioner "gravitas", the power to hold authorities to account, and to foster and enhance collaborative working/financial relationships within the sector, giving victims their rightful voice:
"For the Victims' Commissioner to be effective and legitimate, the role must be on a statutory footing. This gives the Commissioner's office the power to compel the resources and information needed to ensure all victim's voices are heard and represented, to challenge, and to create meaningful, lasting change." (Victim/witness support organisation)
Again, it was felt that making the role statutory would provide parity with the role of the Children and Young People's Commissioner Scotland.
While there was strong support, comments were also made (by just one or two respondents each) that:
- it would be important for there to be a clear remit and explanation of how the Victims' Commissioner's role would overlap with the role of the Children and Young People's Commissioner for Scotland, to manage the expectations of victims and witnesses and other stakeholders
- there should be a guarantee regarding the timescales around passing of the legislation and the role coming into place.
Three respondents noted that making the role statutory may mean that it would take longer to implement (which could again be disadvantageous to victims and cause disruptions to existing support services), with one questioning if a non-statutory role would be possible in the interim. Others stressed that while it may take time, it was important that the role was conceived in the right way, and for the long-term.
The two respondents who disagreed that the role should be statutory (both victim/witness support organisations) did so on the basis that they did not support the role as a whole as it was seen to potentially duplicate and detract from the role of existing victim and witness support organisations operating across Scotland.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 32 | 47% | 70% |
| Somewhat agree | 5 | 7% | 11% |
| Neutral | 3 | 4% | 6% |
| Somewhat disagree | 2 | 3% | 4% |
| Strongly disagree | 4 | 6% | 9% |
| No response | 23 | 33% | - |
Base = 69
Most respondents who answered this question (70%) strongly agreed that the Victims' Commissioner should be accountable to the Scottish Parliament. Views echoed those made in response to earlier questions, i.e. that accountability to Parliament would ensure transparency and garner trust.
A common theme among those who either 'strongly' or 'somewhat' agreed was that the Commissioner should be accountable first and foremost to victims, witnesses, their families/supporters and the general public as a whole. Accountability to Parliament was seen as important, but secondary to public accountability.
Comments from organisations not working directly with victims and witnesses included that the definition and process of accountability would need to be clearly set out to give victims trust in the role:
"It is necessary that there is a clear accountability mechanism for the post of the Victims' Commissioner. This is particularly essential from [a] victims' perspective, especially if the post holder's performance in the role falls short of the required standards." (Other (academia))
A small number of organisations again cautioned that accountability to Parliament had the potential to put the role at risk of being politically influenced or driven. However, others emphasised that accountability to a cross-party Parliament, instead of the Scottish Government, should ease this concern:
"The Scottish Parliament is the democratic voice of the Scottish people. There is no other forum or body who could hold the Commissioner accountable in the same way." (Public body)
One academic respondent highlighted that accountability to the Scottish Parliament would allow victims to voice any concerns about the role holder via their MSP.
Again, comments were made that making the Victims' Commissioner accountable to Parliament would be consistent with position for the Children and Young People's Commissioner, as well as the Scottish Human Rights Commission.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Annual year report | 32 | 46% | 76% |
| Multi-year strategic plan to be published and laid in the Scottish Parliament | 33 | 48% | 79% |
| Other | 21 | 30% | 50% |
| No response | 27 | 39% | - |
Base = 69
Both the options of annual reports and multi-year strategic plans received strong support from respondents (76% and 79% respectively). There was also strong support for using a combination of annual yearly reports and a multi-year strategic plan (67%). Just under a third of those who answered the question (31%) ticked all three options, and there were no obvious differences in the preferences expressed between individuals and organisations or organisations of different types.
Both annual reports and multi-year strategic plans were welcomed on the basis that they would assist with transparency and accountability, raise awareness of the role, allow any shortcomings to be regularly identified and challenged, and allow victims and others represented by the Commissioner to keep abreast of activity, progress and plans:
"The production of frameworks, strategic action plans, annual reports, made publicly available also enhances accountability of the role. These mechanisms will provide clarity of the role, a clear strategy and programme of activity will support robust accountability." (Local authority (including justice partnerships))
Combining the two was seen as providing short term transparency and up-to-date information alongside setting out longer term vision and outcomes which would give partners confidence in the Commissioner's strategic approach. Regular reporting in the first instance was seen as especially important given the backlog of cases in the courts and victims' desires to see what was being done in the immediate term. Both of these options were also seen as commensurate with reporting procedures for other similar public positions.
Several who indicated 'other' again stressed the need for the Commissioner to be accountable to victims directly, as well as those who work with victims, witnesses and their families/supporters (e.g. Victim Support Scotland, Rape Crisis, Women's Aid) to allow scrutiny by such partners. Indeed, the main 'other' reporting suggestions included:
- reporting to a panel of individuals with lived experience (e.g. victims and witnesses)
- that the multi-year strategic plan should be developed in partnership with victims/survivors
- that the role should have an involvement in relevant group structures in order to work together with other relevant parties (including Victim Support Scotland).
One organisation suggested an Independent Scrutiny Panel with victims with lived experience engaged from the outset as part of systems design to define the role.
More general comments included that:
- all reporting should be done in such a way that it is accessible to victims, including children and young people (with suggestions for a publicly accessible website, to assist with transparency, similar to the model operated by the Children and Young People's Commissioner)
- plans should be reviewed regularly to make sure that they remain current
- more nuanced reporting procedures could be developed once the role was more clearly established.
One legal organisation noted that, while the Scottish Parliament was the correct forum in which the Commissioner should be held accountable, the decision on the manner in which the Commissioner was to be held accountable was something which should be for the legislature to make (i.e. the validity and credibility of the appointment required annual scrutiny by the country's legislature).
A small number of respondents (including academics) also urged that the Commissioner use an evidence-based approach to developing plans, including scrutinising national and local data, highlighting any necessary improvements required nationally by organisations, highlighting any gaps, current research and examples of good practice.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Raising awareness/promotion of victims' interests and rights | 38 | 55% | 79% |
| Monitoring compliance with the Victims' Code for Scotland, the Standards of Service for Victims and Witnesses and any relevant legislation | 36 | 52% | 75% |
| Promoting best practice by the criminal justice agencies and those providing services to victims, including championing a trauma-informed approach | 39 | 57% | 81% |
| Undertaking and/or commissioning research, in order to produce reports and make recommendations to the Scottish Government, criminal justice agencies and those providing services to victims | 35 | 51% | 73% |
| Other | 20 | 29% | 42% |
| No response | 21 | 30% | - |
Base = 69
All of the functions suggested in the consultation paper were supported by around three quarters of those who answered this question. Further, most who gave a valid response either ticked all options or ticked a combination of different options (rather than just one). Several open-ended comments were also made that all of the above functions carried equal weight and they would combine to produce an effective role:
"All of the above hold merit in their own right, however they will tell the complete story when looked at in tandem." Victim/witness support organisation)
Overall, comments made in response to this question stressed the need for a strong and clear definition of what the role was expected to deliver.
Some victim and witness support organisations raised concern about the complexity of the role and the experience that would be required to effectively deliver it. They again highlighted that such experience had already been built up across existing services, and that such services may remain best to deliver any future support:
"'Crime' is not a homogenous phenomenon and designing and delivering services for victims-survivors requires a sophisticated and deep understanding of the nature of their experience, the intersections of their identities (race, gender, disability, sexual orientation, etc.), and the context of their communities. We cannot imagine a Commissioner or Commission that would be better placed to advise strategic leadership regarding best practice than the survivor-led grass-roots services that have emerged over the last 5 decades." (Victim/witness support organisation)
Others (especially victim and witness support organisations) suggested the need for a formal mechanism that would allow small and specialist services to have equal voice as well as the need for the Commissioner to work with non-nationwide victim support organisations in a collaborative way. It was again stressed (especially by those in the support sector) that there was already much knowledge, skills and experience in local front line and grass roots organisations, which should not be ignored.
In relation to 'raising awareness/promotion of victims' interests and rights', the need for the Commissioner to include a strategic focus on specific forms of victimisation was stressed (including, for example, at least one strand of work focusing on and developing expertise in domestic abuse or dedicated work for victims of sexual crimes).
Three respondents suggested a function of actively seeking contributions from lived and learned experience groups:
"One of the Commissioner's key functions should be listening to and engaging with people who have been affected by crime to ensure that their experiences and voices drive positive changes for future victims." (Other (third sector))
In relation to 'undertaking and/or commissioning research', views were offered that this was essential for identifying good practice as well as issues, gaps and where the current system was failing. One public body indicated that a research function would help to ensure that the Commissioner was up to date with the changing needs and emerging issues affecting victims. It would also help them to monitor the impact that any change in practice would have. One local authority/justice partnership also suggested, however, that there was a need to ensure that undertaking research did not take away from the other aspects of the Victims' Commissioner role (and that commissioning research rather than undertaking it may be more appropriate). One academic organisation argued that the function of the Victims' Commissioner should be not only reactive but also proactively pursue evidence-based and research-based solutions to the problems encountered by victims in the criminal justice system in Scotland.
Other suggested powers or functions (from just one or two respondents each) included:
- raising awareness and speaking out about victims' rights, needs and interests (including mental health challenges and needs)
- powers of investigation
- being able to hold other agencies to account if they are found not to be complying with the Victims' Code etc., and to ensure that appropriate mechanisms are in place to address lack of compliance
- a specific function to protect child victims
- a role in monitoring compliance with the Bairns' Hoose standards
- a more proactive role in undertaking impact assessments in advance of any changes in practice being implemented, as this would enable mitigation of any potential negative impacts
- overseeing, mapping and monitoring provision of victims' services, including domestic abuse services
- overseeing, mapping and monitoring provision of perpetrator interventions and disposals.
One respondent suggested a role in ensuring that all court officials are properly trained when dealing with victims of domestic abuse, and others felt that powers to ensure that justice partners adopted a trauma-informed approach (especially in their interactions with victims) would be appropriate:
"Promoting best practice by the criminal justice agencies and those providing services to victims, including championing a trauma-informed approach, and to these agencies. This might include through providing or contracting to provide training and guidance to agencies on delivering high-quality services structured by a set of standards, and best practice in commissioning services." (Victim/witness support organisation)
Finally, one respondent again urged that the role and functions of the Commissioner not be developed or treated in isolation from those they would be working alongside (i.e. the role needed to be determined alongside considerations of the other current Commissioner roles in place in Scotland).
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| The experience of victims in the criminal justice system | 38 | 55% | 84% |
| The experience of victims in the civil justice system | 33 | 48% | 73% |
| The experience of victims in relation to the Children's Hearings system | 34 | 49% | 76% |
| The experience of victims resident in Scotland, but where the crime has taken place outwith Scotland | 30 | 43% | 67% |
| Other | 15 | 22% | 33% |
| No response | 24 | 35% | - |
Base = 69
The majority of respondents who answered this question (84%) indicated that they felt the experience of victims in the criminal justice system should be within the remit of the Victims' Commissioner. Similarly, around three quarters felt that the experience of victims in the civil justice system (73%) and Children's Hearings System (76%) should also be in scope. While less well supported, more than two thirds (67%) also expressed that the experience of victims resident in Scotland, but where the crime has taken place outwith Scotland, should also be within the Commissioner's remit.
Several respondents again simply indicated that they believed 'all of the above' would be appropriate and argued for an inclusive approach, with everyone who has been harmed by crime being included within the remit of the Victims' Commissioner. Including all within the Commissioner's remit was seen as providing consistency, parity and equal and fair treatment for all types of victims:
"Irrespective of whether the victim is part of criminal [or] civil justice system, they will generally require support. This will be most evident in cases of trauma. We should ensure all people living in Scotland have access to the best possible experiences in the Justice System." (Other (campaign))
Victims in the criminal justice system, especially victims of violent and sexual crime, were described by one legal organisation as likely to have endured the greatest hardship and upset and so prioritising their experience was suggested.
Including civil cases and those in the Children's Hearings System was seen to be particularly important in providing cross-over/continuity for victims who are currently required to navigate multiple systems (especially child victims and domestic abuse survivors):
"In our experience, victims may concurrently experience processes within each of these systems and it is important that the Victims' Commissioner views the system as a whole, in the same way that victims do." (Advocacy/support organisation (Children and Young People))
Several also commented on the importance of including children and the Children's Hearings System as children can be subject to the proceedings of the Children's Hearings System and/or can be the victim of harm by a young person who is the subject of the proceedings. In the latter case, it was suggested that there are often difficulties experienced in obtaining justice within the proceedings and understanding the complexities of the system.
This support was not, however, unanimous, with some respondents stressing that children's experiences of victimisation should not be subsumed under those of adults (and vice versa) and that a different specialised body to oversee cases involving children may be more appropriate, for example, the Children and Young People's Commissioner Scotland. One public body indicated that it was not clear from the consultation if the proposal here related to children and adults who had been the victim of an offence committed by a child subject to a referral to the Children's Reporter and invited clarity from the Scottish Government on this point.
Several used the open-ended comments to again support inclusion of people who are resident in Scotland but have been victimised outside of Scotland within the Commissioners' remit. One respondent, however, noted that this should not be prioritised over the other areas suggested:
"The experiences of victims who are resident in Scotland, but where the crime has taken place outside of Scotland, should only be included within the remit of the Victim[s'] Commissioner if the office is adequately resourced to carry out this work. Navigating foreign justice systems and diplomatic relations is inevitably more complex than domestic cases and would require a specialist role within the office of the Victims' Commissioner. If it is considered beyond the means of the Victims' Commissioner, there must be clear accountability for welfare abroad - with a named Minister held responsible." (Victim/witness support organisation)
The main 'other' responsibilities cited by just one or two respondents each included:
- witnesses of crime
- family members of victims and witnesses
- family members of those accused of a crime
- children who have engaged in offending behaviour and have themselves also been victims of crime
- foreign spouses of victims
- victims who have not reported their experience and are not part of the Criminal Justice System, for example, due to lack of trust or challenges with communication (so as to understand the reasons for this and to consider any of the points raised).
As well as offering suggestions for which types of victims should be included within the remit, several respondents made suggestions for more strategic duties which they felt would be appropriate to the role, including:
- remit over the entire victim's journey
- having a clear oversight of the various different pieces of legislation that have been enacted relating to victims
- being able to review processes regarding Police Complaints and Victims Right to Review against decisions made by COPFS
- highlighting and addressing incompatibilities with the UNCRC in advance of, or following, its incorporation
- adopting and promoting a trauma-informed approach.
One more general observation was made by a third sector respondent that the term 'victims of crime' may not be liked by many to whom it is applied, and that "people affected by crime" may be a more suitable title for this group (in line with the Victim Support Scotland Language Guide[11]).
Other comments included that it would be helpful to have clarity on how the role of the Victims' Commissioner would link to the operationalisation of the Bairns' Hoose model and also how it would work in practice with the Children's Hearings System, given that the review of Hearings was still ongoing. Clarity was also sought on how additional training and resources arising from the role of the new Commissioner would work in practice, as well as clarity around how the Commissioner would work with the Lord Advocate and other justice and political partners.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| The power to carry out investigations into systemic issues affecting victims of crime | 35 | 51% | 85% |
| The power to require persons to give evidence in the course of an investigation | 25 | 36% | 61% |
| The power to make recommendations to the Scottish Government, criminal justice agencies and those providing services to victims | 35 | 51% | 85% |
| The power to require persons to respond to any recommendations made to them (by the Victims' Commissioner) | 32 | 46% | 78% |
| Other | 11 | 16% | 27% |
| No response | 28 | 41% | - |
Base = 69
Again, while many respondents indicated that they felt all of the powers listed in the consultation were appropriate, those that attracted the most support were the powers to carry out investigations into systemic issues affecting victims of crime (85%) and the power to make recommendations to the Scottish Government, criminal justice agencies and those providing services to victims (85%). The power to require persons to respond to any recommendations made to them (by the Victims' Commissioner) was also very well supported (78%) and only the suggested power to require persons to give evidence in the course of an investigation attracted support from less than two thirds of those who responded to the question.
Investigatory powers for systemic issues were seen by victim and witness support organisations as essential for enabling greater autonomy in determining the focus of the Commissioner's work, and in identifying problems and potential policy changes. Specific examples of systemic issues which might be in scope here included investigation of police practice in relation to victims of domestic crimes and cases involving children where systemic problems had occurred.
Again, clarity around powers was seen as necessary to ensure that the roles of the various scrutiny bodies did not overlap. Specific concern was raised around risks of overlap with the Children and Young People's Commissioner in this regard, and it was stressed that both organisations taking on similar powers of investigation may constrain the latter's ability to investigate issues relating to child victims and witnesses which are brought to their attention.
One very specific concern was also raised that such powers of investigation would also overlap with established mechanisms for accountability of the police service. This included the powers and functions of the Scottish Police Authority, the Police Investigation and Review Commissioner, HM Inspectorate of Constabulary in Scotland, and the Crown Office:
"Any perceived shortcomings in how the police deal with complainers/victims are more than capable of being addressed through these bodies. The potential addition of yet a further layer is therefore wholly unnecessary." (Law enforcement)
While the power to require persons to give evidence in the course of an investigation was considered to guarantee compliance of public authorities, voluntary bodies and others in a transparent and timely manner, one respondent suggested this power should be extended to allow the collection and questioning of relevant data to inform an investigation (such as data on prevalence of victimisation, responses and criminal justice outcomes). The same respondent suggested it should also include the power to gain access to criminal justice agency records where necessary.
Some of the doubts raised in relation to requiring persons to give evidence in the course of an investigation included concerns that no-one should be compelled to do so, especially not victims (for whom doing so could be traumatising and compound the original trauma):
"It would be useful to clarify whether the 'requirement' would be professionals or individual victims. Choice needs to be at the forefront for victims and we need to be careful of unintended consequences to victims." (Local authority (including justice partnerships))
The power to 'require persons to give evidence' could be replaced with the power to 'require (or support) persons to co-operate' it was suggested, as that was more conciliatory and collaborative.
The power to make recommendations to the Scottish Government, local government, criminal justice agencies, those providing services to victims, and other public bodies was seen as key to giving investigations and research the level of robustness required. One respondent suggested that these recommendations may include possible law change and practice change. The same respondent said that lessons could be learned from England and Wales about the importance of ensuring that Commissioners were given the power to report and make recommendations.
The power to require persons to respond to any recommendations made to them (by the Victims' Commissioner) and receive a response within an agreed timeframe was welcomed on the basis that it would again ensure the Scottish Government and other relevant agencies were accountable to any recommendations made. Clarity was sought on whom the term 'person' might refer to in this question.
Other possible powers, mentioned by just one or two respondents each, included the power to:
- review complaints from victims where there is some question as to whether their rights under the Victims' Code has been complied with or not
- challenge individual cases in regards to automatic early release in which offenders have been on licence
- convene meetings with the Parole Board and Scottish Prison Service (SPS)
- impose timelines from reporting to the police to attending court (i.e. within 12 months)
- allocate resources to determine/address key gaps and failures (at national levels and in line with the agreed multi-year strategy)
- undertake effective review of the operation of the Victims' Code and any relevant standards and legislation
- require changes to and expand the Victims' Code and any relevant standards and legislation if it is found to be inadequate
- ensure compliance with the Victims' Code and any relevant standards and legislation
- bring appropriate legal proceedings against bodies that are found not to be complying with the Code and any relevant standards and legislation
- hold the Government to account in relation to its Equally Safe strategy, including any new guidance and standards developed as part of the independent strategic review of funding and commissioning of violence against women's and girls' services
- undertake effective review and quality assurance of approaches to those who commit crime, in particular how it impacts on the Victims' Code and victims' experiences of justice, and any potential system-generated risks
- require changes to approaches to those who commit crime if such approaches are found to be inadequate and harmful to victims and survivors - including compromising their safety, wellbeing and sense of justice.
A final and more general point raised by one third sector respondent was that unless the Commissioner had additional powers (such as being able to identify or develop appropriate funding models to support systemic change), there was a risk that the role would not be able to bring about meaningful changes on the ground.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 37 | 54% | 81% |
| Somewhat agree | 7 | 10% | 15% |
| Neutral | 1 | 1.5% | 2% |
| Somewhat disagree | - | - | - |
| Strongly disagree | 1 | 1.5% | 2% |
| No response | 23 | 33% | - |
Base = 69
There was strong agreement (81%) with the proposal that the Victims' Commissioner should be required to consult with victims on the work to be undertaken by the Commissioner (and views were consistent across all types of respondents). Indeed, many suggested this was a central tenet of the role and assumed that anyone appointed to the post would wish to place victims "front and centre" of any planning and operations in order to succeed:
"We believe that direct engagement with victims is fundamental, as it is their voices that the commissioner should champion." (Victim/witness support organisation)
In particular, it was felt that:
- any consultation must be inclusive and open to ensure that victims from a wide range of backgrounds have a chance to get involved
- consultation must include both those who are already engaged with support and those who are not (i.e. identifying gaps where people feel that they cannot engage, and capturing hidden or seldom heard voices)
- children and young people must be appropriately involved in any consultation or engagement
- useful learning could be achieved from consulting with victim support organisations and others who advocate on behalf of victims
- the consultation must take into account any questions that victims would wish the Commissioner to ask of specific agencies on their behalf
- engagement should go beyond consultation to include things such as collaboration and co-production, whereby victims are directly involved in informing policy and practice change
- engagement with victims needs to be done in a safe, managed and trauma-informed way, appropriate to the stage the victim may be at in their journey:
"Engagement with victims needs to be trauma-informed, safe and managed with due care and attention being paid to the point in the process for the victim, for example using authentic voice panels/ survivor reference groups that support the victim to engage." (Local authority (including justice partnerships))
One respondent suggested that consultation should not be restricted to 'new' direct engagement, but that the Commissioner should also learn from the views and experiences of victims expressed over the years via earlier consultations or previous research, to ensure that duplication of effort does not occur. In contrast, another respondent suggested that engagement must be ongoing and be continually embedded and acted upon, recognising that needs and experiences may change over time.
One organisation suggested that consideration should be given to resourcing a specific role in the Victims' Commissioner's office to take responsibility for appropriate consultation and engagement, in reflection of the distinct skills and expertise required for engaging victims and survivors in this way.
The one organisation that strongly disagreed with this proposal was a victim and witness support organisation who, again, expressed a view that there was no need for a Victims' Commissioner at all.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Advisory board, including victim representatives | 31 | 45% | 74% |
| Victims' reference group | 29 | 42% | 69% |
| Focussed consultations with victims | 34 | 49% | 81% |
| Ad hoc engagement with victims | 27 | 39% | 64% |
| Other | 18 | 26% | 43% |
| No response | 27 | 39% | - |
Base = 69
Again, the majority of respondents who answered this question selected multiple responses, rather than one alone, the most popular being focussed consultations with victims (81%) and an advisory board, including victim representatives (74%). The least favoured option was ad hoc engagement with victims (64%) and open-ended comments suggest that this may be because direct ongoing engagement with victims was seen as essential in order to promote confidence.
Open ended comments also reiterated that a combination of different engagement methods was the preferred approach, and/or that a menu of options would allow a greater number of different victims to be heard.
Again, organisational respondents stressed that whichever approach or approaches were adopted, they must be trauma-informed, be flexible and appropriate to individual victims' needs and circumstances. The Commissioner must be given scope to adopt bespoke solutions to engagement where needed (i.e. each occasion should drive the choice of engagement methods used and this should be a victim led decision):
"Methods of engagement with victims need to be as flexible as possible to support everyone to have a voice. Not everyone will wish to have the same level of engagement: some will want to provide input in the longer-term, whereas others may feel more comfortable contributing on specific subject areas. Being a survivor of crime is traumatic, and trauma-informed practice requires choice, control, and trust to empower participation." (Other (third sector))
Supports to facilitate safe engagement were also seen as necessary, including use of different modes (face-to-face, online or telephone) and different environments (that provide security, comfort, privacy and anonymity) as required.
It was felt that the purpose of any engagement activities would also need to be clearly specified, and one respondent suggested that the applicability of the various posited options would largely depend on the issue that was being consulted upon. Similar to responses given to earlier questions, some organisations emphasised that there would also be value in engaging with victim support organisations, and/or working alongside such organisations to facilitate engagement with victims themselves.
In relation to children and young people, it was suggested (by one academic organisation) that they should be consulted individually and through organisations who support them regarding the work of the Victims' Commissioner as this was a different role to that of the Children's Commissioner (albeit with significant overlaps). Special consideration should also be given to those children and young people who do not have the means to share their views and experience. Again, a mix of different ways of engaging children and young people was suggested:
"Participation of children and young people who have experience of being victims can be by individual, groups, consultation responses - all of which could be led by children and young people themselves. Engagement could also take place by having children and young people being represented on an advisory board for victims, allowing general consultations on an ongoing basis with the option to then consult on specific issues with wider groups." (Other (academia))
Only one individual raised concerns specifically regarding the establishment of a formal advisory group that included victim representatives in case this entrenched the views of particularly vocal groups and individuals about victims' experiences and their expectations of the system.
Other more general comments included that valuable lessons could be learned by looking at the experiences of other Victims' Commissioners in this regard.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Yes | 33 | 48% | 82.5% |
| No | 6 | 9% | 15% |
| Unsure | 1 | 1% | 2.5% |
| No response | 29 | 42% | - |
Base = 69
The majority of those who answered this question (82.5%) indicated that there were specific groups of victims who they thought the Victims' Commissioner should have a specific duty to engage with.
The specific groups listed (in no particular order) were:
- women and girls (although this may reflect the fact that several responses came from organisations representing women and girls)
- children and young people
- those with protected characteristics (especially those from minority ethnic backgrounds)
- care experienced victims
- people with physical and learning disabilities and victims with additional support needs
- hard to reach and seldom heard groups
- refugees, asylum seekers and immigrants (both male and female)
- victims of historic as well as current crimes (including victims of historic child abuse)
- people who have been witnesses of crime
- family members of individuals accused of a crime
- police officers and others exposed to violence and victimisation
- victims of the most serious crimes (including sexual crimes and domestic abuse)
- victims from LGBTQI+ communities
- victims with experience of sex work
- victims of abuse in religious environments/victims of so called 'honour based' crimes
- victims living in Scotland who have been victimised outside of Scotland
- organisations that specialise in victim support (including Children's Panels).
One children and young people's organisation expressed a view that there should be no limit to the 'type' of victim (criminal justice or civil justice) that are deemed worthy of support and advocacy. Others simply reiterated that the Commissioner should treat all victims fairly and with equal weight, so as not to diminish public trust in the Commissioner (which may occur if one or more special interest groups attained dominant status).
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 35 | 51% | 76% |
| Somewhat agree | 6 | 9% | 13% |
| Neutral | 2 | 3% | 4.5% |
| Somewhat disagree | 1 | 1% | 2% |
| Strongly disagree | 2 | 3% | 4.5% |
| No response | 23 | 33% | - |
Base = 69
Just over three quarters of respondents (76%) who answered this question strongly agreed that the Victims' Commissioner should be required to consult with organisations that work with victims, on the work to be undertaken by the Commissioner. A further 13% somewhat agreed.
Several respondents (from different sectors) again stressed that they saw this as a fundamental requirement of the Commissioner. While some felt there was no need to make this a 'formal' requirement (given its inevitability), others felt the requirement should be strengthened further:
"…a legislative requirement to consult with the third sector is not sufficient to ensure strong engagement in practice. We would therefore be keen for structures and processes to be put in place alongside legislative requirements, to support the Victims' Commissioner to engage with as broad a range of third sector organisations working with people affected by crime as possible." (Other (third sector))
Respondents were keen to stress that they wanted the Commissioner, if established, to work closely with support organisations to ensure that the role complements and amplifies rather than duplicates existing specialist voices.
The strengths of engaging with such organisations were that:
- they already had an awareness of the complexity of victimisation and the different forms it could take
- they were already known to victims and trusted by them, and would be a reliable conduit for information sharing
- such organisations were already well versed in how to engage with victims in a trauma-informed way.
Others stressed how they perceived that partnership working, which would build on the experience already held within existing victim support services over a number of years would deliver the best results for victims, with all organisations and agencies learning from one another. This would involve agencies engaging in robust communication and possibly joint training.
A specific comment was made that this kind of engagement must include organisations representing children and young people, who may be best placed to share their experiences of service delivery and feedback from the children and their families, ensuring a wider coverage of voices, especially those not in a position to provide their opinions without this support.
It was also stressed that this type of engagement must include not only large/national organisations, but that there should also be representation of smaller, specialist services. Some respondents suggested that the consultation document was unclear as to how the Commissioner would represent, promote and engage equally with all victims' organisations across Scotland.
Another specific caution was raised (by a legal organisation) that not all organisations working with victims will be marketed as such. For example, organisations working with people convicted of crimes will also be supporting victims, as people who commit offences are often victims of crime themselves. Equally, organisations working with the families of people who offend will also be supporting victims, such as those who themselves are the target of their family member's offending.
Overall, by engaging such organisations alongside victims directly, it was felt that the crucial blend between learned and lived experience would be achieved.
Question 12: Are there any other relevant bodies or organisations that may have an interest in the work to be undertaken by the Victims' Commissioner?
A large number of other relevant bodies and organisations were cited by respondents including (in no particular order):
- Victim Support Scotland (VSS)
- Victim Information and Advice Service (VIA) (part of COPFS)
- Independent victim support groups (included those that are self-funded)
- Rape Crisis Scotland
- Women's Aid (including Shakti Women's Aid and regional offices)
- Victim and Witness Partnerships (VAW Partnerships)
- The Victims Taskforce
- National Network of Violence Against Women & Girls Partnerships
- Police Scotland Domestic Abuse Forum
- Scottish Commission for People with Learning Disabilities
- Scottish Women's Rights Centre
- Victims Organisations Collaboration Forum (VOCFS)
- People First (Scotland)
- Engender
- Equality Network
- Wellbeing Scotland
- Scottish Trans Alliance
- Trafficking Awareness Raising Alliance (TARA)
- AMINA Muslim Women's Resource Centre
- Say Women
- SCOT-PEP
- National Ugly Mugs
- Sport Scotland
- Scottish Refugee Council
- Disability Charities
- Edinburgh Domestic Abuse Court (EDACS)
- Women's Equality Party
- Scottish Children's Reporter Administration (SCRA)
- Children's Hearings Scotland (CHS)
- Children and Young People's Commissioner
- Youth Link Scotland
- Mental Welfare Commission
- Care Inspectorate
- HM Inspectorate of Prisons
- Scottish Human Rights Commission (SHRC)
- Restorative Justice Service providers.
Engaging with key criminal justice agencies was also seen as key, including the Judiciary, COPFS, Police Scotland, Scottish Prison Service (SPS), Parole Board and the Scottish Courts and Tribunal Service (SCTS), as well as Community Justice Scotland and Criminal Justice Social Work (CJSW).
In the wider public sector, Public Protection Partnerships, Violence Against Women Partnerships, Community Justice Partnerships and Alcohol and Drug Partnerships were seen as key. In addition, other partnerships and providers who support victims and their children were considered to have a potential interest in the work of the Victims' Commissioner. This included, for example, Housing, Education (including Child Protection co-ordinators and Named Persons), Further and Higher Education Providers, Children and Families Social Work, secure care and residential care providers, Health and Social Care Partnerships (HSCPs), Education Scotland, Health Services and COSLA (including the COSLA Equally Safe Coordinator).
One children and young people's advocacy/support organisation again stressed that it would be vital to engage with the Scottish Government's National Governance Group on Bairns' Hoose and the statutory agencies and third sector organisations, including Children 1st, involved in piloting Bairns' Hoose and developing a national approach to this.
Identifying key stakeholders (possibly through a scoping exercise) was suggested as a key task for the Commissioner, on appointment. It was also recognised that the list of relevant organisations whom the Commissioner should engage with would change over time, and as such would need to be reviewed and refreshed on an ongoing basis.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 10 | 15% | 24% |
| Somewhat agree | 12 | 17% | 29% |
| Neutral | 4 | 6% | 9% |
| Somewhat disagree | 4 | 6% | 9% |
| Strongly disagree | 12 | 17% | 29% |
| No response | 27 | 39% | - |
Base = 69
This question attracted the most disparity in responses of all questions linked to the Victims' Commissioner. Just over a half of those who answered the question either strongly agreed (24%) or somewhat agreed (29%) and just over a third either strongly disagreed (29%) or somewhat disagreed (9%).
Those who agreed felt that the overall focus should be on population-wide, systemic change, however, the power to champion or intervene in individual cases may be appropriate (depending on the level and extent of the 'interventions' and/ or 'championing' required). One respondent suggested that, where it was appropriate and proportionate for the Commissioner to champion or intervene in individual cases, this should only be in such cases where there was potential to drive institutional change in the public interest.
Other respondents stressed the need to maintain independence, focus on systemic change and protect resources for the wider public interests instead of personal gains.
Comments from neutral respondents included concerns about 'capacity' and how much the Commissioner would reasonably be able to take on board in their role (i.e. the role could potentially become too large and too resource intensive if it also included this power and, therefore, a focus on systemic change should be prioritised). One respondent also felt that the role of the Commissioner could bring an understanding and important information to individual cases, even if case specific intervention was not possible. Two respondents flagged that the consultation stated that the Commissioner would not be expected to intervene on behalf of any one individual and felt that this may conflict with victims' expectations of the purpose of the Commissioner.
There was consensus that the independence of the Commissioner should never be compromised:
"…attention should be given to the independence of the Victims' Commissioner - championing some cases over others may lead to allegations of setting a 'hierarchy of victims / victimhood' which could in turn undermine the role of the Victims' Commissioner. The cost/ benefit analysis concerning any championing activities should be carefully considered on a case-by-case basis." (Other (academia))
One individual also suggested that, if the Victims' Commissioner did not have the power to champion or intervene in individual cases, there needed to be somebody else in the system who would have that power and role.
Question 14: Are there any other matters relating to the proposal to create a Victims' Commissioner for Scotland you would like to offer your views on?
Most respondents used this question to reiterate points already raised in response to earlier questions, although the following few 'new' issues were raised.
A small number commented that the consultation perhaps did not clearly discuss or set out the additionality that the role could bring, i.e. the importance of ensuring that the Victims' Commissioner adds value to an already complex landscape for victims, rather than adding an additional layer of complexity or duplicating the work already being done by others.
Organisations working with adults with learning disabilities also stressed the intersectional experience of women with learning disabilities which places them at significantly greater risk of Gender-Based Violence, and argued that the Commissioner should be established in law with responsibility for monitoring, data collection, and accountability to ensure that access to justice is fair and equitable for women with learning disabilities
One respondent felt that clarity over the role the Commissioner would have in 'prevention' may also be helpful, and another that the appointment of a Victims' Commissioner may present an opportunity to raise public awareness of the legal difference between the terms 'victim' and 'complainer'. Others simply reiterated that they would welcome the introduction of a Victims' Commissioner subject to the role being transparent, fair and representing all victims' voices.
Contact
Email: victimsconsultation@gov.scot
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