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.
Options to underpin trauma-informed practice and person-centred approaches
The Vision for Justice in Scotland sets out the importance of delivering person-centred and trauma-informed practices across the justice sector, including taking greater action to hear victims' voices. The consultation sought views on particular legislative changes which could assist in supporting this shift towards a trauma-informed justice system for victims and witnesses.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 39 | 57% | 76% |
| Somewhat agree | 8 | 12% | 16% |
| Neutral | 2 | 3% | 4% |
| Somewhat disagree | 1 | 1% | 2% |
| Strongly disagree | 1 | 1% | 2% |
| No response | 18 | 26% | - |
Base = 69
Almost all who answered this question either strongly agreed (76%) or somewhat agreed (16%) that a specific legislative reference to 'trauma-informed practice' as an additional general principle would be helpful and meaningful.
Supportive comments included that any measures to underpin trauma-informed practice and person-centred approaches were welcomed if they made the justice process fairer, more accessible and less challenging for those who take part in it. Again, embedding trauma-informed practice was seen as especially beneficial for female survivors of sexual assault and domestic abuse, as well as children and young people who were among those considered to be most likely to find the justice experience itself to be traumatising or retraumatising. The explicit inclusion of 'trauma-informed practice' in the Victims and Witnesses (Scotland) Act 2014 was described as also signalling the Scottish Government's commitment to being trauma informed, as well as instigating and compelling justice organisations to embed trauma-informed practice.
Comments from those who were neutral or only partially supportive included that they had received trauma-informed training, but were "no wiser for it" and that the theory was useful only if put into practice (and this would require additional resources to make sure that any legislative change was implemented meaningfully):
"…we wish to highlight the importance of not just legislating for things but also ensuring that there is adequate resource allocated to implementation. Simply adding in some additional text to policy or legislation does not mean that this will happen in practice and we would be keen to see a full implementation plan to ensure that the ambition for this change will match the reality." (Advocacy/support organisation (Children and Young People))
One organisation also commented that being trauma informed was not enough and that significant cultural change to systems and processes to make them trauma sensitive was also needed (and this may involve working closely with those with lived experience to better understand what changes were required and how systems should respond).
The need to be 'trauma responsive' rather than just 'trauma informed' was cited by several respondents and comments were also made in relation to the need to very carefully define and operationalise the term 'trauma-informed practice' to ensure that there was a common understanding of what this entailed (and a consistent application in practice, as a result). Linked to this, comments were made by some support organisations that there was a very clear difference between 'trauma informed' and being 'domestic abuse informed' and that this difference must be made clear to all relevant parties going forwards:
"…we would strongly emphasise that the system being trauma informed is not the same as being domestic abuse informed. This is a crucial difference to bear in mind and in order to avoid women-blaming practices that only serve to re-victimise and re-abuse women, children and young people, it is necessary for all the actors in the system to receive training on, and understand domestic abuse-informed practice and how this builds on the key principles of trauma-informed practice to both improve outcomes for women, children and young people affected by domestic abuse and hold perpetrators to account." (Victim/witness support organisation)
Several respondents welcomed the ongoing development of the NHS Education for Scotland (NES) Trauma-Informed Justice Knowledge and Skills Framework for identifying the knowledge and skills necessary across the workforce. One public body that had no question-specific comments to make also stressed that they were committed to embedding trauma-informed practice and training for staff within their establishment. Another legal organisation commented that relevant training for staff was essential and that (if the legislation changed) consideration would be needed around which cases staff could/would be able to get involved with if they lacked relevant trauma-informed training. Questions were asked around how training, implementation and the adoption of trauma-informed practice within relevant organisations would be monitored and enforced:
"Regardless of whether this is a legislative requirement, it may also be helpful to have clear quality indicators that allow organisations to practically evaluate themselves against these aims and monitor progress over time, as well as support the governance structures of implementation across multi agency systems." (Public body)
Similarly, comments were made that commitments by organisations (including financial commitments) would be necessary to ensure that training was adopted and implemented as planned:
"…it takes substantial time, leadership engagement, and resource to prioritise and bring into practice such change across complex multiagency systems with multiple competing demands." (Public body)
Other more general comments included that:
- trauma-informed principles and practice must apply equally to victims, witnesses and those accused of crimes, as the latter can also experience secondary trauma from contact with the justice system
- any such legislative change must be considered alongside other ongoing work relating to trauma and Adverse Childhood Experiences (ACEs) (including the ACEs Strategy, trauma training, the development of Mental Health and Self- Harm Strategies etc.) to ensure a cohesive and streamlined approach.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 36 | 52% | 75% |
| Somewhat agree | 9 | 13% | 19% |
| Neutral | 2 | 3% | 4% |
| Somewhat disagree | 1 | 2% | 2% |
| Strongly disagree | - | - | - |
| No response | 21 | 30% | - |
Base = 69
The majority of respondents (75%) strongly agreed with this proposal and a further 19% indicated that they somewhat agreed.
Several respondents simply referenced their answer to Question 15 and welcomed this as a positive move to give victims confidence in the responses they might receive from justice partners, and to achieve consistency in what victims could expect:
"…reference to trauma-informed practice within the current legislative framework for the standards of service would be useful and meaningful especially for victims and witnesses. This would empower them to know that the legal professionals and justice system had standards which would be thoughtful, kind and compassionate towards them and could help them discuss their trauma in a safer way knowing that there were standards which would make them feel safer." (Victim/witness support organisation)
It was also suggested (by respondents of various affiliations) that this addition may act as a motivator to organisations, give them clearer direction and facilitate the sharing of good practice across Scotland. Several also emphasised again that, while they supported the move, any legislative change would require clear action to ensure that changes were properly understood, implemented into practice and enforced (with organisations being held to account).
Victim and witness support organisations commented that in order to make a specific reference to trauma-informed practice within the current legislative framework for the Standards of Service meaningful, more would first be needed to raise awareness of the Standards and Victims' Code among both the public and authorities (with meaningful consequence for authorities that do not adhere to them including, for example, the police). Importantly, there was scope to make victims themselves more aware of the Standards:
"Action must be taken by the Scottish Government to, not only, raise awareness of the existence of the Standards and the Victims' Code, but also actively promote the Standards and importantly, the
Victims' Code, making the latter widely available, including in hard copy, across all areas where victims will engage with statutory and third sector agencies." (Victim/witness support organisation)
One justice partnership stressed that specific reference to trauma-informed practice within the current legislative framework would only be useful and meaningful if those going through the justice system had a mechanism to feed back on their experiences and improvements were made when issues were identified.
Overall, despite some reservations around awareness of the Standards, comments generally reflected the view that adding this reference would strengthen the existing obligation on justice agencies and would be welcomed by victims and their representatives as a way of recognising the importance of a trauma-informed approach.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 35 | 51% | 75% |
| Somewhat agree | 7 | 10% | 15% |
| Neutral | 3 | 4% | 6% |
| Somewhat disagree | 1 | 1.5% | 2% |
| Strongly disagree | 1 | 1.5% | 2% |
| No response | 22 | 32% | - |
Base = 69
Again, almost all who answered this question either strongly agreed (75%) or somewhat agreed (15%) that having a legislative basis for the production of guidance on taking a trauma-informed approach would be useful and meaningful, with many again arguing that it would emphasise the importance of a trauma-informed approach in the justice system and offer organisations clear direction:
"…having a legislative basis…would clearly define the process [for] victims and witnesses…as well as keeping legal professionals to a duty of standards to ensure that this trauma-informed approach was being delivered…" (Other (third sector))
Other comments included that:
- having a legislative basis for the production of guidance should not delay the promulgation of practical guidance, which could be made available in the meantime
- any legal basis for the production of guidance should be accompanied by a requirement to engage with victims, witnesses and perpetrators and any guidance developed must be informed by people's lived experience and evidence of what works
- any guidance must be accessible to all those to whom it applies.
One third sector organisation indicated that they would be keen to assist with the development of guidance on taking a trauma-informed approach and one victim and witness support organisation suggested that the Victims' Commissioner (if appointed) could work with agencies to create such guidance (as well as being responsible for holding agencies to account in adhering to the guidance). A different victim and witness organisation also stressed that, in the development of new statutory guidance on trauma-informed practice in the justice system, the Scottish Government should build on and bring together important work done in this area to date (including the work of the NHS Education for Scotland (NES) National Trauma Training Programme).
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 39 | 56% | 80% |
| Somewhat agree | 8 | 12% | 16% |
| Neutral | 2 | 3% | 4% |
| Somewhat disagree | - | - | - |
| Strongly disagree | - | - | - |
| No response | 20 | 29% | - |
Base = 69
No respondent who answered this question disagreed with the proposal, and only two offered neutral responses (one legal organisation and one law enforcement organisation).
Most respondents who supported the court having an obligation to prevent harmful conduct, viewed it as particularly important for the court to direct the behaviour of accused and defence solicitors in this way, to prevent distressing cross-examination of witnesses (although it was also noted that the Law Society of Scotland already currently provides trauma-informed training programmes for court practitioners):
"This would ensure that witnesses and clients would be treated in [a] fairer and more compassionate way whilst ensuring the re-traumatisation of a witness or victim would be kept to a minimum. It would also lessen the negative impact on being in the criminal justice system." (Other (campaign))
One public body suggested that the wording of this proposal be carefully developed since only asking legal professionals to "consider" a trauma-informed approach may leave room for various interpretations and allow for the approach not to be used at all:
"It would allow those who do not agree the approach to continue without using it and could perpetuate differences in practice which have a real impact on people who have experienced harm." (Public body)
In contrast, one legal organisation suggested that having a statutory footing for this direction was superfluous, since a common law power for every judge to regulate the conduct of matters in their court already exists. This proposal was described by this organisation as "more an evolution of courts' existing attention to the wellbeing of witnesses and accused people" rather than a new duty:
"The judiciary can be trusted to modify and improve practitioners' approaches as required." (Legal organisation)
One individual also noted that such consideration may be difficult to achieve in practice, and difficult to reconcile with the adversarial nature of the system:
"…if a defence advocate's strategy is to undermine a jury's confidence in a victim's truthfulness or reliability, he or she is almost certain to pursue lines of questioning that traumatise the victim. If a judge were to curtail such questioning, there might be a risk that this action could give grounds for appeal. I believe this may be why judges often do not intervene in this situation at present." (Individual)
Other more general comments included that it would be helpful to have more detail about how this would work in practice and what the expectations would be on legal professionals. One third sector organisation encouraged links being put in place with existing trauma training programmes, including the Trauma-Informed Lawyer Certification course, run by the Law Society of Scotland, and the National Trauma Training Programme, run by NHS Education for Scotland (NES).
It was also suggested that it would be useful to have more detail on methods envisaged for redress or complaints mechanisms and procedures available to victims and witnesses, including children, if these new proposals were not followed up on and their experiences are not trauma informed.
One individual expressed a view that establishing statutory requirements for a trauma-informed approach would only be effective if it was implemented alongside the other reforms suggested in Lady Dorrian's Review.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Yes | 28 | 41% | 61% |
| No | 3 | 4% | 7% |
| Unsure | 15 | 22% | 32% |
| No response | 23 | 33% | - |
Base = 69
Just under two thirds of respondents (61%) said that they felt that virtual summary trials should be a permanent feature of the criminal justice system, while a further third (32%) were unsure. Only three respondents (two individuals and one legal organisation) did not agree.
Those who agreed with virtual trials being a permanent feature did so mainly on the basis that it would make the process less formal, with less potential for retraumatisation (especially in cases involving sexual offences and domestic violence offences and for children).
One public body offered strong support for virtual summary and hybrid trials (where some participants appear in person and some virtually) as part of a modern justice system, especially in terms of the benefits that they offer to complainers and witnesses. This same body cited evidence from previous pilots that had shown how virtual trials could be effective, especially for summary domestic abuse trials (with others suggesting that if it removed the need for victims to face perpetrators in such cases, this would be particularly welcomed).
For those who offered partial support, this was mainly because they viewed that a flexible system, which offered tailored approaches to different cases, was required to ensure that the system was victim led:
"…we do not advocate a blanket approach as there are several factors which must be assessed on a case-by-case basis in order to make sure that a fair trial takes place, otherwise a miscarriage of justice may result." (Legal organisation)
Others who were unsure indicated that choice and empowerment were the most important factors in determining how cases should be heard, and felt that virtual trials should not become so commonplace that they become the default selected by criminal justice agencies and staff, especially if not the preferred choice of the victim or witness.
Indeed, some who were unsure indicated that while there may be value in virtual trials, some victims and witnesses welcomed the opportunity to "have their day in court" as they equated this with a greater sense of justice being enacted and felt it could also form part of the healing process:
"Such experiences are often…the one chance that a victim gets to really see justice in action, to feel as though someone, somewhere is fighting your corner for what is right. To merely offer virtual courtrooms, would, I believe, take away from the deeply personal and important process that many survivors experience and need from such processes. Closure and a sense of justice being delivered to the right person is crucial and if the victim wishes to do this in person, this option must be available." (Individual)
Other reasons given in support included that it could result in a speedier and more efficient summary system, increasing accessibility for trial participants and reducing many of the barriers such as travel and costs that can negatively impact on people's experience of an in-person trial. One respondent, however, noted that efficiency and cost savings should never be prioritised over fairness and sound justice:
"All people involved in the trial must agree to a summary trial being held virtually, balancing the need for fairness to the defendant and the need for safety, comfort, and convenience for the [complainer]. Cost- and time-savings for the courts, while beneficial, should not be the overarching consideration." (Other (third sector))
The one legal organisation that did not agree did so on the basis that virtual trials had the potential to diminish the solemnity and seriousness of the case for those involved, compared to an in-person appearance at court. They also suggested that remote hearings had the potential to lead to participants being less honest or less compliant compared to appearing in person. This view was endorsed by a second legal organisation:
"There can be an unacceptable level of informality and lack of dignity; difficulty in evaluating credibility and poor quality interactions between the court and the lawyers. Whilst there may be benefits in terms of convenience and associated cost savings for witnesses in giving evidence remotely, these need to be balanced against the deficiencies identified." (Legal organisation)
This same respondent also expressed that there may be mixed experiences in relation to the effectiveness of virtual trials among the judiciary and so, on this basis, suggested that it would be prudent to retain judicial control over whether it features in a particular case.
An individual who disagreed suggested that virtual summary trials should be used discerningly while the other did not agree with summary trials as a means of achieving justice at all.
Other comments included that:
- it was necessary to ensure that all parties had the IT required to support participation
- any system which is implemented must provide for the effective participation of the accused and allow confidential communications between the accused and their solicitor
- authorities must recognise the additional responsibility placed on defence solicitors, in terms of investment in resources, additional preparation and the dedicated time required for the trial itself
- virtual trials can create additional demands (and costs) for participants
- additional payment may be required for solicitors working on virtual trials and additional legal aid provided to participants as a result
- the use of virtual summary trials should be further tested before wider roll out, should be based on emerging evidence, needs assessment and be kept under review (including consideration of hybrid models).
One other observation was made that research was currently ongoing into the use of technology in the Children's Hearings System to explore how effective the approach is in that setting.
Question 20: If you answered yes to the previous question, in what types of criminal cases do you think virtual summary trials should be used?
The main types of criminal cases that were cited as being suitable for the use of virtual summary trials were domestic abuse cases, rape cases as well as sexual assault cases or those involving violence against women and girls. Again, this was because it was perceived that complainers in these cases were among the most vulnerable and likely to be in need of protection from the traumatising impacts of presenting evidence in the presence of the perpetrator (a view shared by support organisations, local authorities/justice partnerships, public bodies and others):
"There is clear rationale for the recommendation relating to domestic abuse cases in particular. Amongst the advantages are that the complainer and vulnerable witnesses will not need to be in the same physical space as the accused. Additionally, in cases of domestic abuse, where it is commonly understood coercive control is a common factor, there is a risk that the court process itself may be used as a coercive control tactic and increase feelings of vulnerability. Innovative court models and approaches, which include the use of remote links, have the potential to be an important feature within the justice sector's response to this." (Public body)
Although mentioned less frequently, cases involving children/child witnesses were also cited, as well as hate crimes (including disability hate crimes), stalking and harassment cases and cases involving anti-social behaviour. One public body and one legal organisation also suggested that virtual trials may be particularly appropriate for use in proceedings for road traffic offences, given that they often have few or mainly police officers as witnesses (i.e. to reduce burdens and resource implications of staff having to attend in person).
A few respondents made more general comments that victims' and witnesses' own particular circumstances and barriers should be the main determinant, instead of the 'type' of case. In this vein, individuals facing communication barriers were cited as potentially benefitting from virtual trials, as well as individuals living with addictions or mental health challenges. Again, those living in rural and remote communities and those required to travel long distances to court were also seen to benefit from the greater accessibility afforded by remote trials.
Some individuals and organisations said 'all' cases (although one third sector organisation and one legal organisation again stressed that use of virtual trials must always strike a balance and only be used if all parties agree):
"It is preferable in all cases, therefore, that the respective parties agree that the relevant evidence and/or trial can be conducted effectively in that manner. As long as there is no blanket approach, there seems to be good reason to continue to use the virtual system where it is appropriate to do so." (Legal organisation)
Some organisations also suggested that the complexity and nature of the evidence being led would be the best determinant of when such trials should be used. One legal organisation suggested that cases where there were few witnesses and little legal complexity may be particularly well suited to virtual trials.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 20 | 29% | 47% |
| Somewhat agree | 7 | 10% | 17% |
| Neutral | 7 | 10% | 17% |
| Somewhat disagree | 7 | 10% | 17% |
| Strongly disagree | 1 | 2% | 2% |
| No response | 27 | 39% | - |
Base = 69
This question attracted one of the most mixed responses across the whole consultation. While just under half (47%) of those who answered the question strongly agreed, the remainder gave less positive or neutral responses.
Most who supported the presumption did so for the same reasons cited in response to earlier questions (i.e. due to benefits that could be achieved in system efficiency and victim/witness safeguarding). Some individuals felt that making this the default position may reduce anxieties for victims in the justice process.
Many who agreed somewhat, disagreed somewhat or were neutral (including individuals and organisations representing various sectors) shared a common view that decisions on how trials should proceed must always be victim led, with choice built in (and that this was more important than an automatic presumption in favour):
"…there is a need for people who have been harmed by crime to have a degree of choice, as part of a trauma-informed approach, with the option of a virtual trial available for those who wish to make use of that model." (Other (third sector))
While some felt that choice could be maintained even where virtual trials were the default, others suggested that introducing a presumption may undermine that choice. One legal organisation urged that the use of virtual trials should be seen as an additional resource, rather than a replacement for existing traditional summary courts.
Organisations (again from a mix of different sectors) also reiterated that, regardless of whether a virtual or in-person model is used, they were keen to ensure that people have access to independent advocacy and appropriate support throughout the process.
One organisation expressed a view that the presumption should definitely not operate where the person responsible for domestic abuse and the person who has experienced the abuse are resident at the same address.
Others again cautioned against the use of virtual trials per se (and the presumption) unless sufficient resources were put in place to support them (including equipment, funding and facilities for solicitors involved in such trials).
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 23 | 33% | 52% |
| Somewhat agree | 8 | 12% | 18% |
| Neutral | 9 | 13% | 20% |
| Somewhat disagree | 2 | 3% | 5% |
| Strongly disagree | 2 | 3% | 5% |
| No response | 25 | 36% | - |
Base = 69
Again, there were mixed responses to this question, with just over half (52%) of those who answered the question indicating that they strongly agreed, and the remainder giving less positive or neutral responses. Many who provided open-ended comments also did not directly answer the specific question asked, and instead focussed more generally on the use of virtual trials and IT solutions in the justice system as being positive for victims as a whole.
Those who strongly agreed (which included some individuals and organisations from across a range of sectors) put forward views that there were benefits in using a wide range of options/having flexibility in the system, and that virtual trials would again remove the need to risk coming into contact with perpetrators at court (i.e. it would increase the distance even further than TV links). This would make giving evidence more accessible, comfortable and affordable for many (in contrast to TV links from court buildings):
"…the court process can be traumatising especially when having to be in the same building as the accused and their families. Giving evidence behind a screen can be helpful but women have advised us that they still do not feel safe as they know the accused is still in the same area. This disempowers them and makes them feel unsafe…Therefore we believe there are benefits to virtual trials as it can significantly reduce the anxiety and trauma of the victim and witnesses and they may be able to talk more freely because they are able to deal with the trauma in a more positive way as they would feel safer." (Other (campaign))
More neutral or caveated responses again stressed that all cases should be considered individually, taking into consideration the needs and preferences of victims, witnesses and the accused. Some victims could, for example, find such measures even more challenging and daunting than appearing in person. Among this cohort, it was considered that virtual trials may offer some additional benefits to the ability to give evidence remotely by live TV link in some, but not all, cases.
One local authority/justice partnership also noted that emotional wellbeing was much less likely to be impacted by frustrations in cases held remotely, where trials do not go ahead at the last minute (i.e. less wasted time in travelling to court buildings to give evidence in person or via TV link).
Comments were also made that digital literacy could lead to exclusions in some cases (i.e. not everyone would be able to access the necessary technology and advocacy/support or information) and could also introduce bias into proceedings:
"A number of factors need to be considered for virtual trials, including witnesses' familiarity with and support for the IT being used so as not to cause added stress; the functionality of the IT being used / bandwidth to ensure good image and sound quality; and prevention of discrimination / advance judgement if a person is connecting to the IT from a prison or wearing a prison uniform." (Other (third sector))
Some very specific concerns were also raised about the potentially dehumanising effects of evidence given via TV link and in virtual trials. One third sector organisation pointed to research which had shown that TV links risk 'dehumanising' the person on screen, resulting in judgments different to what may have been reached when people appear in person. One legal organisation (that strongly disagreed that there were any additional benefits to be achieved) also noted that removing people from the presence of the decision maker (whether judge or jury) tended to diminish the impact of their evidence:
"A sense of unreality can creep in, as if we are watching a program about something, rather than feeling the power of live testimony. That tends to reduce impact, and logically must affect outcomes. Whether in the round the reduced stress of the witnesses yields more effective evidence, when set against the dilution of impact that remoteness brings is open to debate." (Legal organisation)
One other third sector organisation cited emerging research evidence which suggests that, in some circumstances, the use of virtual courts can be associated with human rights violations.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 17 | 25% | 40% |
| Somewhat agree | 7 | 10% | 17% |
| Neutral | 9 | 13% | 21% |
| Somewhat disagree | 7 | 10% | 17% |
| Strongly disagree | 2 | 3% | 5% |
| No response | 27 | 39% | - |
Base = 69
Several of those who strongly agreed did not answer the question directly, but instead offered support for Visually Recorded Interviews (VRI) more generally. As with virtual trials, VRI was seen as providing complainers and other witnesses a chance to give evidence in a more comfortable and non-traumatic way, thus maximising quality of evidence. Again, use of pre-recording of evidence was seen as particularly valuable for complainers of serious sexual offences.
VRI was again seen to be useful as one tool in a suite of options available to victims, and should be something offered routinely, especially to vulnerable witnesses:
"Whilst we believe that these options should be the default position, we also believe that the choice whether to use them should be in the hands of the victim of crime and they should be empowered to choose whichever option best suits them." (Victim/witness support organisation)
Two legal organisations strongly agreed on the basis that the existing legislation was clear and existing powers worked well.
While most feedback was positive, one public body noted that they were not convinced that the powers on their own would encourage the necessary changes to occur quickly. Another local authority/justice partnership suggested that the prosecution and defence would need to be satisfied that evidence could be led and tested in a way that gave the process credibility. One campaign organisation also warned that expert training should be implemented (alongside any roll out) for all those involved in carrying out the interviews, and that this should be monitored and updated regularly.
Those who somewhat disagreed mainly did so because they felt that the legislation could be clearer or more explicit. This cohort also commented that while legislation allows for pre-recorded evidence in summary cases, this is either rarely or inconsistently applied (with discretion resting with justice partners in individual cases). The benefits of VRI was widely accepted and so making its use available to more complainers was seen as a positive move.
Others who strongly agreed caveated their response by stressing the need to properly support and finance any widening out of the use of such measures:
"It is essential that the increased use of VRI is done when the necessary resources are in place, namely, training, ICT equipment and suitable locations for such interviews to take place. All three of these facets are vital to achieve the policy intent behind the legislation; however, it must be recognised that they each carry a significant resource demand. It will be vital to consider the funding and availability of these resources to support [our organisation] and delivery partners in moving fully to the envisaged VRI model in the future." (Law enforcement)
One victim and witness organisation and one individual strongly disagreed, with the former suggesting simply that current provisions did not go far enough.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 32 | 46% | 75% |
| Somewhat agree | 6 | 9% | 14% |
| Neutral | 4 | 6% | 9% |
| Somewhat disagree | 1 | 1% | 2% |
| Strongly disagree | - | - | - |
| No response | 26 | 38% | - |
Base = 69
Three quarters of respondents (75%) who answered the question agreed with the proposed extension to Ground Rules Hearings to all child and vulnerable witnesses required to give evidence in the High Court.
Individuals, victim and witness support organisations and one public body who supported the proposal noted that there was substantial evidence to support that this method was effective in supporting vulnerable witnesses/complainers (especially those involved in sexual offence cases):
"We would agree that Ground Rules Hearings should be extended to all child and vulnerable witnesses required to give evidence in the High Court. It is our opinion that children and vulnerable witnesses should be dealt with in a trauma-informed manner. As identified in the consultation paper this has, in other jurisdictions, been shown to improve the experiences of victims and witnesses when providing evidence." (Victim and witness support organisation)
The same victim and witness support organisation suggested that the proposal could go further and that the default position should be that the location of the Ground Rules Hearing should be in a non-court trauma-informed environment. One public body indicated that they would also welcome their use within Children's Hearings proceedings.
Particular benefits of extending Ground Rules Hearings for all child and vulnerable witnesses included:
- removing the need for the survivor to be in court (with associated accessibility benefits)
- reducing anxiety and stress caused by the prospect of having to give evidence in court
- helping to reduce delays in proceedings
- increased scrutiny over the style of questioning used in cross examination
- giving clarity in advance to the approach to be taken at court
- increasing complainers' confidence in the system
- minimising trauma
One legal organisation noted that this extension would be relatively easy to adopt, and one law enforcement organisation noted that this flexibility would allow the court to determine what is appropriate for the witness in a particular case, and for it to be tailored to what was required.
One advocacy/support organisation working with children and young people also observed that this change would be consistent with the Scottish Government's broader ambitions relating to children not attending Court and the transformational change that a Bairns' Hoose would bring.
One individual, while supportive of the extension, suggested that at a minimum, the principles of Ground Rules Hearings should be clearly explained to victims and they should understand how they fit within the overall system. The concept of Ground Rules Hearings could, they suggested, otherwise be very difficult for victims to navigate and understand:
"This question prompts me to point out how impenetrable and intimidating the legal system - and its accompanying terminology - are to victims…[I had no] idea what was meant by terms such as '(pre)-petition', 'precognition', 'libelled', 'production' or 'diet' in this context. The information booklets provided to her were woefully incomplete and inadequate. The terms 'Ground Rules Hearings' and 'commissioner' and 'on commission' could easily be added to the list of incomprehensible terms unless clearly explained for lay people." (Individual)
One other individual urged further consideration in relation to the depth of training and expertise which is required to understand and support vulnerable witnesses with adequate resources. One legal organisation also observed that the effective conduct of Ground Rules Hearings, whether extended or not, may depend upon the extent to which defence statements provide meaningful information to the court.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 8 | 11% | 19% |
| Somewhat agree | 2 | 3% | 5% |
| Neutral | 9 | 13% | 21% |
| Somewhat disagree | 11 | 16% | 25% |
| Strongly disagree | 13 | 19% | 30% |
| No response | 26 | 38% | - |
Base = 69
This question attracted the lowest agreement of all questions in the consultation linked to trauma-informed practice. Less than a quarter (24%) of those who answered the question agreed and over half said that they either somewhat disagreed (25%) or strongly disagreed (30%).
The main sentiment expressed by individuals and organisations representing a variety of different sectors was that the current system of court scheduling was not adequate, with significant delays which impacted negatively on all parties involved in cases. Consistent with responses to earlier questions, respondents stressed that unpredictability, both around what cases would be heard and what they would entail, was a significant existing source of trauma for victims and witnesses:
"In general, one key element of a trauma-informed approach is predictability, transparency and safety. Knowing what is going to happen, and when, is of critical importance for a range of reasons, most of which are outlined in the consultation. However, this extends further than simply scheduling and dates. It is also important to make sure that as well as court proceedings going ahead on the planned date, what happens on that date is also predictable in terms of ensuring the safety of the witness - that they will not have contact with the accused, that the process feels safe for example." (Public body)
It was noted that the COVID-19 pandemic had exacerbated the backlog in cases that was in existence prior to the pandemic and so respondents were pessimistic of any improvements in the speed with which cases would progress through court in the short to medium term.
Victim and witness organisations expressed particular concerns regarding floating trials and adjournments, suggesting that the trauma and stress associated with these in particular was not acceptable to victims, "living day to day not knowing when their case will eventually be called." (Victim and witness support organisation)
Neutral respondents either did not give open-ended comments or indicated that they did not know enough about the powers of the Lord President.
Two legal organisations noted that trials were very difficult to schedule and court delays were, to some extent, inevitable (due to a variety of factors such as failure to appear, solicitors not being present/prepared, unexpected turns in cases, etc.). They noted that all parties, but particularly complainers, would want cases to be progressed expeditiously but this was not always possible. Similarly, one public body noted that the development of court programmes was already designed to be flexible taking into account the impact on witnesses and other justice parties, but that a significant number of factors could affect the ability of individual cases to proceed on a given day. These organisations noted that there was potential for the system to be further improved as the justice sector becomes more trauma aware, but also cautioned that an ideal solution for all parties might be hard to achieve.
One advocacy and support organisation and one public body noted that they were also aware of significant delays and scheduling problems impacting children and families and on that basis they supported all measures to reduce the impact of these delays as quickly as possible. The public body noted that they would have particular concern if measures were introduced which expedited the scheduling of criminal cases to the detriment of Children's Hearings court proceedings, for example.
One academic response argued that a more trauma-informed approach should be in place in terms of scheduling in order for children and young people (and their families/carers) to prepare and speak to court staff about processes and procedures, regardless of whether they would be attending a virtual court or being recorded.
Other general comments included that training across the justice sector would hopefully assist with improvements in the current management and scheduling of cases, and one respondent pointed towards the Summary Criminal Case Management pilots as an example of good practice.
Question 26: Are you aware of any specific legislative changes which would assist in addressing the issues discussed around information sharing? If so, please detail these.
A number of specific suggestions were made for legislative changes which would assist in addressing the issues discussed around information sharing, as set out in the consultation paper. The main broad suggestions were:
- appropriate application of the existing legislative provisions under the Victims and Witnesses (Scotland) Act 2014 enabling victims to obtain information
- support for Lady Dorrian's recommendations for information sharing in the Children's Hearings System, including broader information for complainers addressing how the system works and why information is restricted
- support for reforms within the Bail and Release from Custody (Scotland) Bill, specifically those of the Victim Notification Scheme relating to information on the release of prisoners (which will enable the appropriate and timely provision of information about prisoner release to victims' organisations, to inform the support they provide to, and safety planning for, vulnerable victims)
- a requirement for each agency in the criminal justice process to have responsibility for liaising with victims and others harmed by an offence (e.g. the families of the accused)
- legislative requirements on the court and COPFS to provide survivors with information regarding their case in a timely fashion
- increase in advocacy services for survivors/the right to independent advocacy
- the importance of a single point of contact for complainers and witnesses
- the introduction of independent legal advice (to assist survivors throughout a range of processes involved in the criminal justice system, giving legal advice on the complexities of this in a trauma-informed manner which supports them through the legal process)
- updating and extending the Victim Notification Scheme (including making it 'opt out', removing the onus being on the victim to sign up to the scheme post-conviction when a custodial sentence is imposed)
- legislative changes around victim notification and victims' ability to speak at parole hearings outwith specific sentencing
- legislation implemented regarding those committing solemn offences whilst on licence
- bringing an end to 'not proven' verdicts.
More general comments included that:
- access to clear information at all stages of a case was particularly important for female victims, and complainers in sexual assault, domestic abuse and rape cases
- access to clear information at all stages of a case was particularly important for children and young people (in both criminal cases and in the Children's Hearings System)
- specific legislative changes which have impacted on information sharing can be seen in the implementation of Articles 6 and 9 GDPR and Part 2 of Schedule 1, Section 17 Data Protection Act 2018, which have caused a change in the legal basis for which the police share information on vulnerable individuals with Third Sector Organisations (TSO) and Advocacy Services. Previously police would only share information where the data subject had given consent. Police Scotland have now moved to a Public Task approach to the sharing of data to broaden opportunities for assessment of risk, vulnerability and for early intervention. This approach applies in circumstances where there is a TSO or Advocacy Service in the area that can support the individual.
One law enforcement organisation also commented elsewhere in the consultation that expectations around information could be further explored going forwards:
"In relation to the trauma-informed approach, we would note that whilst we agree with the principle that 'a victim or witness should be able to obtain information about what is happening in the investigation or proceedings', this can sometimes make it difficult to manage expectations about the amount of detail that we can disclose to a victim (or their representative) about an accused/offender or other witnesses. This can be due to investigation and/or legal process constraints, or the need to balance the rights of all individuals. The role of the Commissioner and statutory guidance may provide assistance in highlighting good practice in this area." (Law enforcement)
Question 27: Are there any other matters relating to the options to underpin trauma-informed practice and person-centred approaches in the justice system you would like to offer your views on?
Very few respondents gave new information or views in response to this question, and many reiterated points made in response to earlier questions.
One public body again highlighted the need for shared and agreed definitions and aims of what is meant by 'trauma informed' across all organisations and commitment at the national level for all justice agencies to engage in appropriate training and allocation of resources to embed trauma-informed practice. Others supported calls for trauma training across the justice sector in ensuring that the policy proposals had the intended outcomes:
"[Organisation] are keen for all parts of the justice system to use trauma-informed practice when working with individuals and families. This will require training and support to ensure that the workforce understands trauma-informed practices and are able to strengthen and improve their own practice where necessary." (Other (third sector))
One respondent argued for better training in trauma-informed practice from the police, in particular.
One legal organisation also cautioned that no matter what training is given to legal professionals, juries would not have had the benefit of training and so consideration would also have to be given as to how they might be better informed as to the possible results of trauma, without sacrificing the rights of accused persons.
A few respondents used this question to focus on children and young people. Again, advocacy/support organisations working with children and young people expressed disappointment that there appeared to be no reference in the consultation document to the Scottish Government's clear commitment to embed Bairns' Hoose across Scotland:
"While there is a general recognition of the need for a Whole Systems Approach, at no point in the consultation document is there a reference to current work underway in the development of 'Bairns' Hoose'… With the view of preventing retraumatisation of children and plans to reduce the number of times they have to recount their experiences; we call on greater clarity in how their accounts in Bairns' Hoose will be used and considered in courts." (Advocacy/support organisation (Children and Young People))
Indeed, victim support organisations also argued that a trauma-informed response would include Bairns' Hoose being available to all children and young victims in domestic abuse cases. Greater clarity was seen as being needed on how the proposals would align with the Scottish Child Interview Model, currently being rolled out. One other organisation suggested that consideration should be given to children and young people providing opinions/feedback about trauma-informed approaches, to better help understand and respond to their unique needs as victims and witnesses.
A small number of organisations again encouraged the greater use of/access to independent advocacy workers for those appearing in court, as well as intermediaries, to help reduce trauma:
"Survivors who choose to have their advocacy worker as their trusted supporter in court with them as a special measure, should not have this denied. At present, this is often refused, with a worker from victim services provided instead. This trusted relationship with a specialist advocate must be respected by the justice system routinely, and not inconsistently." (Victim/witness support organisation)
One other respondent reiterated the need for more funding to provide specialist units within law enforcement agencies and separate courts to hear criminal proceedings that relate to sexual and domestic violence offences. General comments were again made about the fundamental need to distance victims from perpetrators in the course of giving evidence to minimise trauma. One organisation again urged the introduction and consistent use of VRI as a priority.
Individuals (and some organisations) who provided additional comments generally focussed on the need for greater support for victims and witnesses per se, including clearer communication with victims and witnesses throughout the justice process (such as making the language in court and in all communications more user friendly and removing unnecessary jargon). This was seen as especially important for the most vulnerable victims and witnesses, including children and young people and those with learning disabilities or facing literacy challenges.
Making the court experience less formal and removing some of the tradition and drama traditionally associated with attendance at court was also seen as helping to increase accessibility and reduce trauma overall (i.e. cultural change).
One third sector organisation again urged that in taking forward trauma-informed approaches, it was essential to consider not only victims, witnesses and complainers, but also the accused and their families/supporters:
"Trauma-informed practice and person-centred approaches in the justice system should also apply to family members of the individual who is accused of a crime…Supporting the vicarious impact of the offence and justice process on the family members of the accused and ensuring necessary support is available to children and families affected by the justice system will be key." (Other (third sector))
A second (legal organisation) endorsed this view and asserted that crucial to making any changes was the need to respect the rule of law and not to compromise the fairness of trials or the rights of the accused, in accordance with Article 6 of the European Convention on Human Rights. Another (also a legal organisation) stressed that the presumption of innocence also meant that the purpose of many trials was to ascertain if the complainer had in fact been made subject to a traumatic event and so it may not be possible to eliminate potential for retraumatisation entirely.
Concerns were again voiced by a minority about the additional time and resources that would be required to bring about the desired transformational change in relation to trauma-informed practice.
Contact
Email: victimsconsultation@gov.scot
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