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.
Introduction of independent legal representation for complainers in sexual offence cases
This section of the consultation explored the recommendations within Lady Dorrian's Review to introduce the right to independent legal representation (ILR) for complainers in sexual offence cases, in connection with applications to lead evidence of their sexual history or character in court.
Lady Dorrian's Review recommended that ILR should be made available to complainers, with appropriate public funding, in connection with applications made under section 275 of the Criminal Procedure (Scotland) Act 1995 and any appeals therefrom.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 41 | 60% | 89% |
| Somewhat agree | 3 | 4% | 7% |
| Neutral | - | - | - |
| Somewhat disagree | 2 | 3% | 4% |
| Strongly disagree | - | - | - |
| No response | 23 | 33% | - |
Base = 69
The majority who answered this question (96%) agreed with an automatic right to independent legal representation as outlined in the consultation.
Those who agreed tended to feel that the provision of ILR for complainers was a positive step. It was argued that this would help to ensure the victims'/complainers' rights and interests would be upheld and protected (with eight citing Article 8 of the European Convention on Human Rights: the right to private life, in particular). It was also felt that this would ensure that complainers were fully informed, independently and accurately, of what section 274 and the 275 applications entail, their rights within this, and advice on the potential outcomes. Further, it was felt this was needed to ensure their voices were truly heard and represented within the process. Respondents indicated that the Procurator Fiscal represented the public interest rather than the best interests of the complainer, and that this could, on occasion, lead to conflicts of interest for COPFS, whereas ILR would alleviate this problem. Indeed, individuals indicated that complainers felt that they remained unrepresented in the system, and therefore dedicated legal representation in such circumstances was required:
"Complainers' interests are significantly impacted when the defence seek to lead sexual history or character evidence in sexual offence cases. Those interests are not adequately protected by the prosecution, who act on behalf of the state rather than individual complainers. To provide complainers in these situations with free independent legal representation would better protect the complainer's interests and promote greater procedural fairness. This could alleviate secondary victimisation and improve complainer satisfaction because they would feel better supported through what can be a lonely and hostile experience." (Other (academia))
It was also felt that ILR was important to provide greater fairness between the accused and the complainer. It was felt that, if the accused had independent legal representation and advice, then so too should the complainer, particularly where applications under section 275 to lead sexual history or character evidence are made.
A few respondents, (including one individual, one local authority/justice partnership, and a victim/witness support organisation) argued that by not allowing such representation for victims/complainers in these circumstances it could result in them not reporting sexual offences or withdrawing from the process after making their complaint. Conversely, others argued that allowing the provision of ILR may result in increased confidence in the system and encourage reporting:
"The provision of ILR is likely to improve survivor experience of the criminal justice system, increase confidence in its functioning and encourage more survivors to report what has happened to them." (Victim/witness support organisation)
Several respondents were keen to see ILR introduced for the complainer to ensure the system operated in a less traumatising, more trauma-informed, and more victim-centred way. It was also suggested that ILR for the complainer could help to tackle the adversarial, aggressive and inappropriate questioning of complainers.
One legal organisation and one academic organisation also argued that there was precedent and an existing model in operation in Scotland which could be followed when a complainer's medical or sensitive records are sought. As such, they felt that this provision could be extended to cover sexual history and character applications. While the legal organisation and academic organisation argued that the provision should be limited in nature and not a free standing right, three victim/witness organisations called for ILR to be granted to complainers throughout the criminal justice process, and for it to be extended to all victims of gender-based violence, including domestic abuse.
One respondent, who did not answer the closed element of this question, but appeared to indicate support for the proposal, highlighted that the implementation of such a change would likely have operational, resourcing and court programming implications, and potentially lead to longer hearings on such applications.
Only two respondents (both individuals) disagreed with the proposal, with just one providing additional comment. They felt that victims should be served by the Procurator Fiscal, and were concerned that such provision would set a precedent which may need to be replicated in other types of cases.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 39 | 56% | 91% |
| Slightly agree | 1 | 1.5% | 3% |
| Neutral | 1 | 1.5% | 3% |
| Somewhat disagree | 1 | 1.5% | 3% |
| Slightly disagree | 1 | 1.5% | |
| No response | 26 | 38% | - |
Base = 69
Almost all who answered this question (94%) agreed with the right to appeal.
A few individuals argued that everyone should be able to appeal a decision, with others arguing that it was such an important and emotive issue that the victim's voice needed to be heard. One also argued that the right to appeal would improve justice for complainers and give them greater control over their information. A few organisations also spoke of the fairness of allowing the complainer to appeal the decision, with a legal organisation arguing that complainers should have the same rights of appeal as the defence.
Another legal organisation and one academic organisation suggested that it would be logical, if ILR is granted for the complainer in the event of a section 275 application, that the relevant party should also be granted the right to appeal. While they argued that suitable processes could be established in solemn cases, they indicated that this might be less straightforward in summary cases. These two respondents, along with others, felt that complainers should have the same right of appeal as the prosecution and defence.
One victim/witness support organisation argued that evidence existed of judges applying the legal provision and tests incorrectly in such cases, therefore it was important for complainers to have the right to appeal. Again, it was suggested by a few organisations that the right to appeal would be in line with a victim-centred approach which could help to mitigate trauma.
Only one respondent was neutral about the proposal, stating that victims should be served by the Procurator Fiscal.
As at Question 48, only two respondents disagreed with this proposal, with just one providing details on why:
"[We] note that neither the accused nor the Crown have a right to appeal. They can apply for leave to appeal but that is commonly refused. [We] consider that the complainer should not be put in a preferred position, in a system where the accused is presumed to be innocent and has more at stake in the outcome than anyone else. If something appears to have gone awry at the Preliminary Hearing stage then the Crown can be trusted to seek permission to appeal." (Legal organisation)
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 35 | 51% | 83% |
| Slightly agree | 4 | 6% | 10% |
| Neutral | 2 | 3% | 5% |
| Slightly disagree | - | - | - |
| Strongly disagree | 1 | 1% | 2% |
| No response | 27 | 39% | - |
Base = 69
Again, the majority of respondents who answered this question (83%) strongly agreed that a right to independent legal representation for complainers should apply during any aspect of criminal proceedings in respect of applications under section 275 (including where an appeal is made). In open ended comments, a few respondents simply referred back to their responses at Questions 48 and 49 rather than providing new or unique feedback to this question.
Again, individuals and others argued that it should be the complainer's right to receive ILR, that it would be appropriate to help complainers navigate the justice system and not drop out, and that it was an emotive topic where complainers would need advice and support to ensure fairness.
Similarly, a range of organisations again felt that this would provide a more trauma-informed approach:
"Rape complainers are particularly vulnerable to being retraumatised by criminal proceedings. They are also frequently subject to victim blaming and rape myths. Independent legal representation would go a long way towards protecting them from such pernicious practices." (Other (campaign))
A range of organisations felt that ILR for the complainer should apply at any stage in the proceedings in order to protect the complainer's interests, improve confidence during and with the proceedings, and improve satisfaction with the criminal justice process. Indeed, one public body argued that having only partial ILR would make little sense, be difficult to explain and difficult to manage:
"This should apply at any stage in the proceedings, and they should also have the right to appeal the decision. The timeframes for the defence to lodge applications should be widened to allow time for a survivor to access legal representation." (Local authority (including justice partnerships))
Again, one victim/witness support organisation argued that ILR should apply more widely throughout the entire criminal justice process in order to ensure complainers are suitably supported and to provide parity between the complainer and the accused.
While one legal organisation agreed with the proposal (based on improving the complainer's understanding of what was happening and why, as well as improving confidence in the system and satisfaction with outcomes), another caveated that, while they were supportive of ILR for appeals pre-trial, they were not in favour of this for post-trial appeals. Similarly, one academic organisation supported the provision of ILR for complainers at the hearing to determine a section 275 application (both pre-trial and where this is considered after a jury has been empanelled) and where the decision in relation to the section 275 application is appealed, but were not supportive of ILR for post-conviction appeals, or the concept of ILR for complainers during the leading of evidence at trial in respect of which the section 275 application has been granted. It was argued by both organisations that there was a less compelling argument for the complainer to be represented in post-conviction appeals, while the academic organisation outlined the following argument against ILR for complainers during the leading of evidence:
"[this] would serve to unnecessarily complicate the dynamics of trial in a way which is problematic given Scotland's adversarial system of proof… the court should be trusted to act to ensure both that the terms of the s.275 application granted are adhered to, and ensure that the complainer, as a witness, is treated fairly." (Other (academia))
One respondent who was neutral about this proposal indicated that they were not familiar enough with the legislation.
Only one respondent disagreed with this proposal, again stating that they felt victims should be served by the Procurator Fiscal.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 35 | 51% | 83% |
| Slightly agree | 1 | 1% | 2% |
| Neutral | 4 | 6% | 10% |
| Slightly disagree | 1 | 1.5% | 2.5% |
| Strongly disagree | 1 | 1.5% | 2.5% |
| No response | 27 | 39% | - |
Base = 69
This proposal was also widely supported among those who answered the question, with 83% offering strong agreement.
Individuals that provided a response argued that ILR for complainers might be even more important where an application is made/dealt with after the start of the trial, as the prosecution and complainer would not have been made aware of this in advance, and it could be used as a tactic to stop the complainer from being able to access ILR:
"It is, if anything, more important that ILR should apply at this stage, especially if there is a possibility that defence teams may use such late applications as a way of circumventing the complainer's right to legal representation against the application at an earlier stage." (Individual)
Two victim/witness support organisations agreed that ILR was required where applications were dealt with after the start of a trial as this could be more distressing for the complainer to deal with if they had already attended court or started giving their evidence. As such, they argued that the "situation would require more oversight and protections from an independent legal representative" (Victim/witness support organisation).
Organisations again argued that representation was necessary in such circumstances to ensure the interests and rights of the complainer were upheld, to ensure they were suitably informed and supported, and to improve complainer/victim satisfaction with the criminal justice process. This was also, again, seen to provide a more trauma-informed approach. Similarly, one argued that ILR should be available to the complainer at each stage of the court process, not restricted to section 275 applications only.
Two legal organisations and an academic organisation felt there was no rational argument against allowing ILR where a section 275 application was dealt with after the start of the trial. While two of these organisations acknowledged that this might introduce delays, they felt this was not an acceptable reason to deny ILR, however the other felt that the judge should be allowed to exercise discretion to whether to allow ILR in such circumstances in order to avoid significant delays:
"Whilst we suspect such instances are limited, there is no rational basis to argue against introducing ILR in this context. All of the above arguments re the introduction of the right generally apply to late applications after the start of the trial. Thought would require to be given as to how representation could be expeditiously organised in this context, and it is true that the introduction of a right here may somewhat delay the progression of trials. However, that is not a sufficient reason to curtail the right, in our view." (Legal organisation)
Conversely, another legal organisation who disagreed with the proposal explained this was due to pragmatism and the delays that would likely be introduced to the progression of the trial. Both the immediate availability of legal representatives, along with the time required for them to be 'brought up to speed' with the case, it was felt, would incur additional delays. Rather, they argued that trust must be placed in the judge to deliver justice. The other respondent who disagreed did not provide any reasons.
One respondent who was neutral about the proposal argued that more information was needed about what such 'exceptional circumstances' might be and the process that would be enacted.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly agree | 40 | 58% | 89% |
| Slightly agree | - | - | - |
| Neutral | 5 | 7% | 11% |
| Slightly disagree | - | - | - |
| Strongly disagree | - | - | - |
| No response | 24 | 35% | - |
Base = 69
While almost all respondents who answered the question (89%) agreed with the provision of legal aid to facilitate ILR for complainers, the qualitative responses were varied.
Individuals and organisations from all sectors argued that financial barriers should be removed, and that legal aid was needed to ensure that a complainer's financial situation did not limit their ability to access justice. It was felt that either a two-tier system or inequalities within the justice system would be created if complainers were not granted access to legal aid:
"Public funding would provide equitable access to ILR which would reduce the risk of inequalities arising in complainers experience of the justice system. This would mitigate against the vulnerabilities experienced by victims of certain crimes, which is one of the key factors in the inequitable treatment of victim/survivors. In particular, crimes of sexual violence, where perpetrators are more likely to target people who are more vulnerable and marginalised." (Public Body)
Some also expanded on this to argue that it should be non-means tested provision (including most of the victim/witness support organisations who provided a response, along with others):
"This should be available via legal aid which is not means tested. Morally and ethically, victims of sexual violence and abuse should not have to pay for their representation, the cost would be a barrier for many victims." (Local authority (including justice partnerships))
Similarly, one individual and a few victim/witness support organisations wanted to see section 275 applications brought into line with requests for medical or other sensitive information - i.e. where there should be no means testing or requirement to pay a contribution towards the fee. They argued that:
"The complainer is being brought into these proceedings by the Crown as a witness and is under a public duty to attend court. As such, it would be inappropriate that they be charged in any way for this." (Victim/witness support organisation)
However, one also argued that the current approach to ILR for medical or other sensitive records, where there is a need to demonstrate that the individual cannot represent themselves, should not apply for section 275 applications. Rather, they felt that ILR should be an automatic right.
One individual did highlight the cuts to legal aid and the difficulties faced by the legal aid budget. They were concerned that this might negatively impact complainers and their ability to access ILR, essentially setting the system up to fail.
Three respondents who were neutral about this proposal provided qualitative responses. One argued that legal aid should not be available where a complainer was able to pay for ILR, while another argued that legal aid should be available for those who needed it. The final respondent did not answer the question directly, but again stated that victims should be served by the Procurator Fiscal.
No respondents disagreed with this proposal.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Under civil ABWOR | 2 | 3% | 7% |
| Under criminal ABWOR | 8 | 12% | 27% |
| Other | 19 | 27% | 66% |
| No response | 40 | 58% | - |
Base = 69
More than 50% of respondents opted not to answer this question as they felt they did not have the required information or experience to comment. With these comments excluded, less than 35% of respondents provided a substantive response to the qualitative element of this question.
Option a) under civil ABWOR
Only two respondents indicated that ILR should be funded under civil ABWOR, with just one of these providing a comment:
"It feels correct as the complainer is not asking for the representation from the position of being an accused person." (Advocacy/support organisation (Children and Young People))
One respondent who noted they were unsure how this should be funded did indicate, however, that if it was difficult to access "it will be useless to most complainers" (Individual).
Option b) under criminal ABWOR
Just three respondents who felt ILR should be funded under criminal ABWOR provided further comments about why. They generally argued that the criminal ABWOR route was more suitable than the civil fund as they were likely to be involved in a criminal process:
"We believe that ILR for complainers should be funded under criminal ABWOR. This would place the arrangements within the existing criminal funding system and avoids misrepresenting the complainer as a civil party to proceedings which could be the impression given if civil ABWOR arrangements were used." (Other (academia))
Option c) other
While this was the most popular option selected, respondents were typically split between:
- those who thought that ILR should be provided through either civil or criminal ABWOR, or made available via both routes, depending upon the nature of the case (n=7)
- those who did not know which route would be more suitable (n=9), although a few did express the need for this to be "provided in the simplest and most expeditious fashion" (Victim/witness support organisation).
One organisation did not outline a preference but did suggest that ILR should be provided by criminal law solicitors.
One respondent was again concerned about the difficulties currently facing the provision of legal aid, i.e. cuts to budgets, the loss of solicitors providing civil legal aid and the strikes in the criminal legal aid sector due to the lack of financial viability, etc. They stressed that these problems needed to be resolved to ensure that complainers in sexual offence cases could expect good quality advice and representation to be available.
One legal organisation suggested that the best route for legal aid to be provided was as Criminal Legal Assistance (although they noted that this would require legislative change as it is normally only available to accused persons) or through a bespoke scheme created specifically for this situation:
"This is a complex area; we consider that complainers would not be able to adequately understand the legal framework governing the grant or refusal of a section 275 application without legal assistance." (Legal organisation)
One academic organisation, whilst not identifying a preferred route, did highlight difficulties with the criminal ABWOR option - including the requirement to seek multiple increases in fees. They also felt that the need to argue an individual would not be able to represent their own interests without a solicitor should not be necessary in the case of section 275 applications.
| Number of respondents | Percentage of respondents | Valid % | |
|---|---|---|---|
| Strongly Agree | 30 | 44% | 73% |
| Slightly agree | 1 | 1% | 2% |
| Neutral | 6 | 8% | 15% |
| Slightly disagree | 2 | 3% | 5% |
| Strongly disagree | 2 | 3% | 5% |
| No response | 28 | 41% | - |
Base = 69
Three quarters of those who provided an answer (73%) strongly agreed with this proposal.
Individuals argued that this was needed to preserve victims' rights, and that they should not be rushed:
"Seven days is not sufficient to enable appointment of an ILR and for him/her to have discussions with the complainer and prepare an argument against the application." (Individual)
Several organisations (across a range of sectors) argued that victims are often traumatised and may need extra time to consider their options and make a decision. It was also suggested that they may change their views about their needs during the course of proceedings, which needed to be taken into account in any timescales set:
"In our experience, survivors often feel rushed and under immense time pressure when a s275 application is made and have not had sufficient time to consider what this means for their case or how it will affect them to have these things come up in court. More time would better prepare them for court and hopefully minimise the re-traumatisation of such questioning being brought up during the trial." (Victim/witness support organisation)
Several other unique comments were provided by those who agreed, including:
- that it would be important that it works alongside the Evidence by Commissioner processes/special measures
- that this would be linked to the availability of legal aid lawyers and so enough time to seek representation would be needed
- that applications should be made a minimum of 14 clear days ahead of all trials to allow time for a complainer to obtain legal advice
- that the timescales need to be increased as the complainer would not already have access to legal advice (like the accused), and so time needed to be factored in to allow them to consider the application and then source ILR.
One public body noted that providing insufficient time for the submission of applications and preparation time for the required hearing would result in the continuation of hearings and "churn", ultimately impacting on court programming. They also suggested, however, that changes to timings would require changes to court rules and the SCTS criminal case management system, and they proposed aligning any changes with the review of section 70A, although only if this did not generate additional delays.
Another highlighted concerns in relation to possible impacts on the Children's Hearing's court proceedings:
"We do not have a view on timescales… We would, however, want to be clear that additional applications within a Children's Hearing Court proceeding could deflect from the focus of the Court on the matters in hand and delay proceedings for a child, which may not be in their best interest." (Public body)
Of those who disagreed that statutory time periods should be adjusted, two legal organisations argued that there was little possibility to advance lodging section 275 applications, while one academic organisation felt that the time available should be sufficient for the complainer to appoint suitable legal representation. Two of these respondents did caveat, however, that this would require/benefit from making available a pool of suitable solicitors, although one noted that this would be difficult given the current wider structural issues impacting the legal aid sector. One legal organisation suggested that, should postponements be required, these could be sought by the complainer's representative, while the academic organisation suggested it may be appropriate to test the process first and then adjust timescales if required.
Only two respondents who were neutral about this proposal provided a qualitative comment. One felt that they did not have the expertise or understanding to answer the question, while the other felt the emphasis needed to be on clearing court delays.
Question 55: Are there any other matters relating to independent legal representation for complainers in sexual offence cases that you would like to offer your views on?
Thirteen respondents provided a response when asked if they had any other comments related to ILR, with a further four respondents who provided a non-standard response also providing comments on this topic. The main other issue that was discussed by respondents was that complainers should have ILR throughout the entire criminal justice process. This was mentioned by just under half of these respondents, including individuals, victim/witness support organisations, a third sector organisation, an advocacy/support organisation for children and young people, and an academic organisation. It was emphasised that it would help to mitigate the stress and perceived injustice of the current system if ILR could be provided at the earliest stages of reporting, throughout the investigation phase, and then across the entire court process. It was also suggested that this may help to reduce attrition rates and withdrawal of complaints:
"Thought should be given to the further provision and funding of legal advice for all complainers who make a complaint relating to sexual abuse to police at the stage of reporting. It appears to us that legal advice at this stage from an independent legal professional could assist complainers in understanding the various stages of the criminal process and potentially aid with attrition rates. The criminal legal process in relation to the prosecution of sexual offences is complicated and distressing for complainers, and Scotland shouldn't rely on either the Crown Office, or third-party charitable organisations, to inform complainers of the various procedural and legal steps involved." (Other (academia))
One victim/witness support organisation provided a lengthy response at this question, again stressing the importance of providing ILR throughout the entire criminal justice process. They also indicated that they had found universal support for ILR from survivors, and outlined a range of international examples where additional support was provided for complainers, including in Canada, India, Ireland, Sweden and Denmark.
Other unique comments provided by separate respondents included:
- that all parties must spend the same amount
- that this would increase the conviction rate
- for there to be appropriate safeguards in law to protect vulnerable complainers against possible exploitation when seeking independent legal advice
- that ILR should be an option from the initial case being petitioned and automatic where medical history need to be shared
- that legal representatives must be suitably trained and held to account in order to provide a trauma-informed approach
- having the right to an independent advocate would further enhance the ILR provision
- one respondent continued to indicate that, while they understood the sentiment behind the proposals for ILR, they felt that victims should be served by the Procurator Fiscal.
Finally, one law enforcement agency, which was in favour of the provision of publicly funded ILR for complainers suggested that, if this could not be provided, then the Crown needed to be responsible for ensuring the complainer was informed and represented.
Similarly, one legal organisation suggested that either COPFS or SCTS could/should take responsibility for the intimation of information to complainers in relation to section 275 applications:
"We are of the view that thought requires to be given in respect of the introduction of a system which ensures that section 275 applications are appropriately intimated upon complainers along with information informing them of their right to assistance. In our view, either COPFS or SCTS needs to have clear responsibility for the intimation of such information to complainers. We consider that SCTS could perhaps take the lead here as they have done in sensitive records cases." (Legal organisation)
Contact
Email: victimsconsultation@gov.scot
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