Improving victims' experiences of the justice system: consultation analysis

Special Measures in Civil Cases

Existing provisions in the Vulnerable Witnesses (Scotland) Act 2004 allow special measures (such as use of a live TV link, use of a screen and supporters) in civil proceedings. The provisions, however, rely on there being 'witnesses' and 'evidence' and a number of civil court hearings are non-evidential and so there are no 'witnesses' or 'evidence'. The consultation sought views on possible extension of the use of special measures in civil cases.

It also included options for the courts to have the power to prohibit personal cross-examination in civil proceedings when the circumstances in a particular case require this measure to be taken.

Base = 69

Most who answered this question (74%) strongly agreed that the courts should have the power to prohibit personal cross-examination in civil proceedings in certain cases.

Several respondents expressed that this change would be particularly important for domestic abuse and sexual assault cases in civil courts (for whom cross-examination by the perpetrator can be particularly harrowing and retraumatising), and would bring parity with criminal courts (where this approach was already seen to be working well):

"The courts should have the power to prohibit personal cross-examination in civil proceedings and this should be utilised to protect survivors of rape and sexual offences from being cross-examined by their abuser. Rape and sexual assault survivors are frequently engaged with the civil courts in circumstances relating to their experiences of those crimes. This is no less traumatising and difficult a process than engaging with the criminal justice system and by comparison we frequently find that survivors are not afforded the same level of protection." (Victim/witness support organisation)

The need for those accessing civil justice systems to be afforded similar protections to those in criminal courts was seen as necessary to ensure that they can effectively participate. Several commented specifically that there should be no circumstances where the accused in either civil or criminal trials for rape, sexual assault and domestic abuse should be able to cross-examine the survivor and that they should be required to instruct a solicitor for this purpose (or the court appoint one for them from an approved list):

"The vulnerability of the witness should be taken into account in any cross examination, regarding their ability to manage the stress and trauma of such proceedings. The current adversarial court system permits the vulnerability of witnesses to be exploited and for them to be discredited." (Individual)

Other comments included that greater clarity may be required around which proceedings would be covered by the legislation (with a suggestion that the examples listed in the consultation paper were not exhaustive).

A number of respondents noted that all cases were different and that there should be flexibility in the system to allow them to be treated as such.

Base = 69

Just over three quarters of respondents who answered this question (77%) agreed that special measures should be available when required for all civil court hearings in Scotland, whether the hearings are evidential or not.

General views were given that all victims and witnesses should be afforded access to whichever protective measures are available to support them, i.e. a "right to feel safe":

"…the type of court where a case is held would be irrelevant when it comes to deciding upon whether special measures were required or not. The deciding factors should be the people involved in giving evidence and whether their experience could be improved by the introduction of a particular special measure." (Victim/witness support organisation)

Many of the reasons given in support also focussed on the vulnerability of those likely to appear in a full range of cases in civil courts, with views that vulnerability (especially in domestic abuse and sexual assault cases) was no less than would be the case for those involved in the criminal justice system. This was seen as especially true in cases where civil proceedings have taken place in a case in relation to rape, sexual assault or domestic abuse when there has not been a conviction in the criminal courts.

Some consultees supported the proposals and also went further to suggest that special measures should be automatic when a party to a civil case has been subjected to domestic abuse or sexual assault:

"They should be automatic in the civil court for the same reasons as they became automatic in criminal court - they are vulnerable as a result of the abuse they have experienced. This should not need to be led in evidence to be agreed." (Local authority (including justice partnerships))

Again, survivors of sexual violence and domestic abuse were seen to potentially benefit in particular from extension of measures, and including special measures in all hearings was also seen as being needed to achieve a fully trauma-informed approach:

"A person-centred, trauma approach should be taken to all civil court hearings in Scotland. As such, special measures should be available when required, to reduce the risk of re-traumatisation." (Other (third sector))

The main reservation was that it may not be proportionately practical to do so (in terms of resources/equipment). It was suggested that civil cases are often lengthy and prolonged and additional demand would be compounded by recent changes to allow introduction of similar measures as a result of the Children (Scotland) Act 2020. Increased demand for relevant specialist equipment, especially at short notice, or for cases heard in settings outside of a normal court room, could be difficult to manage, for example. Any lack of availability in equipment (due to increased demand) could then impact on case progress and cause delays (unless additional funding for equipment was put in place).

One other caveat raised was that, unless a party was representing themselves, they may not always attend a procedural hearing and so the demand for such measures may not always be required.

Question 30: Are there any other matters relating to special measures in civil cases that you would like to offer your views on?

The other main comments made in relation to special measures in civil cases focused on the need for widening the scope of who is deemed 'vulnerable'. General views were given that special measures should be made available to all parties and witnesses engaging in any civil hearings, evidential or otherwise, where special measures would assist them in participating in proceedings while reducing the risks of retraumatisation.

In particular, several respondents advocating on behalf of women argued for the extension of the provisions of the Vulnerable Witness (Scotland) Act 2004 and the Vulnerable Witnesses (Scotland) Act 2014, so special measures are automatically available to vulnerable parties and witnesses in civil proceedings involving domestic abuse and sexual assault. Comments reflected views that all such women should automatically be deemed vulnerable and, therefore, automatically eligible for use of special measures such as a supporter, screen and/or a live TV link, as appropriate.

Other groups who were specifically cited as potentially benefitting from changes to make special measures more available in civil hearings included those living with physical and learning disabilities, children, people who do not have English as their first language, male abuse survivors and trauma survivors:

"There are many groups in our society who would benefit from having these types of methods to assist them in providing their lived experiences." (Other (campaign))

One more general comment was made that barriers for vulnerable groups (especially women experiencing abuse) when it came to securing a solicitor through legal aid must be addressed, owing to the low number of solicitors willing to take this work on:

"…we must establish a better legal aid so that it is not a 'luxury' to utilise the civil justice system but a basic human right." (Individual)

Another organisation suggested that there may be merit in consideration being given to bespoke special measures to provide suitable protection of the identities of victims and/or vulnerable persons in civil cases.

Finally, one public body recommended that any child taking part in any proceedings be afforded the same protections and special measures across all settings (including in non-evidential civil hearings). This would, they suggested, ensure that anything which may inhibit them expressing their views, including their presence or the presence of others, can be addressed.