Improving victims' experiences of the justice system: consultation

Introduction

The Scottish Government's new Vision for Justice in Scotland, published in February 2022, sets out our clear and compelling vision for a just, safe and resilient Scotland.

We are committed to a transformational approach to justice reform to ensure the system meets the needs and values of today's society, and the society we want to see in the future. This means putting people at its heart, redesigning historical processes where they no longer meet our needs and reforming in the interests of better outcomes for those who come into contact with the system.

The Vision sets out the route to a transformed system. Our priorities are focused on delivering person-centred and trauma-informed practices across the justice sector, including taking greater action, in particular, to improve the experiences of women and children and to hear victims' voices. These issues are particularly relevant to the victims of sexual crime. The Scottish Government is resolute in its commitment to deliver a justice system in which all victims of crime, including the survivors of sexual abuse, can have confidence.

The principles of person-centred and trauma-informed practice underpin our Vision and are central to this consultation, which is part of the extensive programme of work we are progressing to modernise our justice system. The consultation focuses on proposed legislative reforms which aim to strengthen the rights and improve the experiences of victims of crime as they engage with the process of justice. Some proposals apply to the victims of any type of crime while others relate specifically to sexual offence cases. The consultation supports delivery of our commitment to empower and protect victims of crime through improving justice services, as set out in the Programme for Government 2021-22. It includes proposals to appoint a Victims' Commissioner for Scotland, protect the anonymity of all complainers of sexual crimes, and progress consideration of the recommendations in Lady Dorrian's review of the management of sexual offence cases which require legislation to implement.

It is our intention that any reforms taken forward as a result of this consultation will be a priority for action, including proposed legislation, over the parliamentary session and that these will represent part of a programme of strategic, managed transformation of the justice system.

The Scottish criminal justice system is complex and inter-related. Any reforms need to be considered alongside other key aspects, including a separate recent public consultation on the not proven verdict and related issues which closed in March 2022. The outcomes of both consultations will be considered together when decisions are made by Ministers on what legislative proposals should be introduced to the Scottish Parliament for consideration. We are committed to taking a holistic approach to reform, recognising the interconnectedness of the issues and the importance of ensuring fairness and balance.

Over the last 15 years the Scottish Government has promoted and delivered progressive legislative reform on victims' rights and sexual offences including:

• Sexual Offences (Scotland) Act 2009 - which transformed the law relating to sexual offences including providing a statutory definition of consent
• Victims and Witnesses (Scotland) Act 2014 - which improved the support and information available to victims and witnesses of crime; introduced a range of rights for victims, ensuring these are encapsulated in the Victims' Code for Scotland; and requires justice agencies to publish and report against Standards of Service
• Abusive Behaviour and Sexual Harm (Scotland) Act 2016 - which introduced statutory jury directions in certain cases to address concerns that juries had preconceived views about the nature of sexual offences or the way that victims responded to these crimes
• Domestic Abuse (Scotland) Act 2018 - which criminalised psychological domestic abuse and coercive and controlling behaviour
• Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 - which created a new rule for child witnesses under 18 to ensure that, where they are due to give evidence in the most serious cases, it will usually be pre-recorded in advance of the trial. The Act includes powers to extend the rule to adult witnesses deemed to be vulnerable which includes complainers of sexual offences
• Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021 -which commenced on 1 April 2022 and established a legal framework for consistent access to "self-referral" whereby a victim can access healthcare and request a forensic examination without first having to make a report to the police - self-referral is available to anyone aged 16 or over, subject to professional judgement
• Domestic Abuse (Protection) (Scotland) Act 2021 - which will improve the protections available to people at risk of domestic abuse, particularly where they live with the perpetrator of the abuse

These legislative changes have been taken forward against the backdrop of the Government's long-term purpose and outcomes for Scotland's wellbeing, the National Performance Framework. Examples of wider strategic work which have driven reform include action to tackle violence against women and girls (underpinned by the joint Scottish Government and COSLA strategy Equally Safe), the work of the Chief Medical Officers' Rape and Sexual Assault Taskforce, and our national approach to improving outcomes for children and young people: Getting It Right for Every Child. Further information about the strategic context for justice reform is set out in Annex A of the Vision for Justice.

These progressive reforms, alongside linked non-legislative work by the Scottish Government and its partner justice organisations, have strengthened and modernised the system. They have been largely based on pre-existing approaches and have delivered incremental improvements. But we know more needs to be done and that transformation is required to deliver a system which is fully person centred, trauma informed and built around the needs of the people it serves.

The proposals in this paper are informed by the experiences of victims and the views of our justice partners and stakeholders. Successful transformation will only be achieved through partnership working and utilising a whole system approach.

These proposals should also be seen against a background of the backlog of cases as a result of the pandemic, and the impacts this has had on all justice agencies and - most importantly - on those going through the system. We have seen significant developments in how the justice system has operated and adapted to changes in working practices as it has responded to public health guidance. This context of a system which is still in recovery but has simultaneously adapted and modernised at rapid pace in some respects should continue to be borne in mind, as should the impacts on delivery partners, including third sector organisations, and on victims, witnesses and accused.

The Victims Taskforce

The Victims Taskforce was established in December 2018 with a primary role to co-ordinate and drive action to improve the experiences of victims and witnesses within the criminal justice system, whilst ensuring a fair justice system for those accused of crime.

Based on direct feedback from victims and witnesses, the key areas identified for improvement are:

• being heard - this relates both to particular stages of the criminal justice process where victims feel they struggle to be heard but also more generally in that victims often perceive they do not have a place in the system
• accessing information - victims and witnesses consistently report difficulties in accessing basic information about their rights and what is happening in their case, and the way in which information is communicated is also often described as unfeeling and potentially re-traumatising
• feeling safe - victims and witnesses need to feel safe in their interactions with the justice system and that the system prioritises keeping them safe in terms of the outcomes sought
• compassion - lack of compassion is often cited, which is one of the main challenges in terms of a system which currently does not feel person centred

In response, we must build public confidence in the culture and processes of the justice system to ensure victims' rights are respected and their needs met without compromising fairness. We must ensure that victims are not deterred from reporting crime because of a justice system characterised by delay, insensitivity and trauma or because of a lack of faith in the system. Victims must have their experience and voices fully recognised and heard, and be supported to give their best evidence. We must strive to ensure that justice is served and that those who commit offences are held to account. This ambition applies to the system as a whole and victims of any crime, but we are also clear that additional targeted action is needed to tackle issues specifically relevant to those experiencing crimes of a sexual nature.

The Scottish Government is committed to developing a justice system that is person centred and trauma informed. Victims should not be seen as passive bystanders compelled to engage in a process which risks causing further harm to them. Without the courage and confidence of victims to come forward, the justice system fails and we are all less safe. The system requires a great deal from victims and witnesses and, while it is right that their evidence is tested and scrutinised, that should not be at the costs of their rights and dignity or at the risk of re-traumatisation.

The Taskforce has also adopted a vision for how the system responds to the needs of victims of crime:

"Our vision is that victims and witnesses will be treated with fairness, compassion and in a trauma-informed manner in which their safety and well-being is a priority. They will have access to consistent, appropriate and timely information and support. They will be able to understand their rights, have confidence that these rights will be upheld and be able to participate effectively."

This consultation provides an opportunity to provide your insights and perspectives on how this vision can be realised as we deliver the wider Vision for Justice in Scotland and take forward our legislative programme.

Sexual Offences and Lady Dorrian's Review

Crimes involving sexual offences such as rape and attempted rape are some of the most serious dealt with by our criminal justice system. They involve a profound and fundamental violation of a person's autonomy and integrity and have distinct, significant and enduring consequences for victims – the majority of whom are female.

The criminal justice process itself can present particular challenges in dealing with these cases with victims reporting that many of the features of the existing system do not support them to give their best evidence and can in fact cause them further trauma.

These issues have become all the more acute given that the number of serious sexual offence cases in our courts has increased substantially in the last 10 years, reflecting the steps already taken to increase confidence in the reporting of such offences to the police.

Criminal Proceedings in Scotland statistics show that in the year 2010/11, 80 people were proceeded against where the main crime charged was rape or attempted rape. By 2019/20 this had increased to 300 - an increase of 275%. Serious sexual offences now make up the majority of High Court trials in Scotland.

In line with Equally Safe, we must advance a criminal justice system which ensures that the rights of women and girls are protected and one in which the survivors of sexual crime can have confidence. We must act to transform the justice system so it is gender responsive, meets the needs of victims of gender-based violence and effectively challenges men's offending behaviour.

Criminal Proceedings in Scotland statistics also show that juries continue to return verdicts of acquittal at a significantly higher rate for sexual offences cases than for other crimes. The overall conviction rate in Scotland for all crimes and offences in 2019-2020 was 88%, however for rape and attempted rape it was 43%.

The substantially lower conviction rate in these cases, when compared to other crime types, risks undermining public confidence in the justice system.

As already discussed, public confidence in a compassionate and fair system is fundamental to ensuring crimes are reported and those responsible are held to account in our criminal courts.

In early 2019, against the backdrop of an increased volume of cases and ongoing concerns over the experiences of victims of sexual crimes in the justice process, the Lord President, Lord Carloway, commissioned the Lord Justice Clerk, Lady Dorrian, to carry out an independent review to develop proposals for an improved system to deal with serious sexual offence cases. The aim of the review was:

"To improve the experience of complainers within the Scottish Court system without compromising the rights of the accused; to evaluate the impact that the rise in sexual offence cases is having on courts; and to consider whether the criminal trial process as it relates to sexual offence cases should be modified or fundamentally changed. The review will then generate proposals for modernising the courts' approach. The review will examine potential changes to the court and judicial structures, procedure and practice as well as determining recommendations for changes to the law."

Lady Dorrian established a cross-justice Review Group with wide representation from stakeholders and justice partners. Membership included: members of the judiciary, Scottish Courts and Tribunals Service, Police Scotland, the Crown Office and Procurator Fiscal Service, the Faculty of Advocates, the Law Society of Scotland, Scottish Children's Reporter Administration, Scottish Government, Scottish Legal Aid Board, Rape Crisis Scotland, Scottish Women's Aid and Victim Support Scotland.

A 'clean-sheet' approach was adopted to identify potential improvements, with the group noting: "the fact that a system has been sanctified by usage may make it difficult to change but it should not make it exempt from thorough examination of its suitability".

The Review Group published its final report in March 2021. For ease of reference the report is referred to throughout this consultation paper as 'Lady Dorrian's Review'.

Lady Dorrian's Review is wide ranging and makes proposals to modernise the existing court and judicial framework as well as procedures and practice.

The Scottish Government welcomes Lady Dorrian's Review and the opportunity for transformational change that it presents. The themes of the report have wider applicability across the justice system, beyond the consideration of serious sexual offences, and the principles endorsed (pre-recording of evidence, better communication, trauma-informed practice) can be applied to whole system change for the broader benefit of all users.

Just as a cross-sector group was essential to ensure a holistic review of the existing system, a cross-sector response is required. The effective delivery of justice relies upon a number of independent and interlinked bodies working together. No single institution holds the key to delivering meaningful change for victims of serious sexual offences and it is imperative that collaborative, partnership working, as illustrated by the work of the Review Group, continues.

The Scottish Government has established a Governance Group comprising key stakeholder interests. This Group will enable progress and detailed consideration of the individual and collective recommendations within Lady Dorrian's Review.

There is cross-sector consensus around many of the recommendations. Many of the report's themes align with ongoing work to improve the experience of those involved with the criminal justice system, to make sure it is person centred and trauma informed. Some of the recommendations can be, and are being, progressed now through changes to policy, practice and culture. Others require further consideration and development before operational changes can be made.

Whilst that work continues through the Governance Group, it is clear that a number of the recommendations will require primary legislation if they are to be implemented. This consultation seeks to gather wider views on those recommendations as they relate to changes to the criminal justice system. This consultation does not address the changes suggested to the Children's Hearing System. Those are being considered elsewhere – they are acknowledged in the consultation on the Children's Care and Justice Bill and are also being progressed via ongoing partner improvement activity under the Children's Hearings Improvement Partnership. Other changes are also likely to be considered via the redesign work led by the Promise Scotland's Hearings System Working Group, which will report in 2023.

The proposals

This consultation paper covers multiple inter-related topics and you do not have to answer every question. Efforts have been made to structure the paper to make it accessible to the reader, acknowledging that some will have an interest in all the proposals while others will wish to focus on those of greatest interest or relevance to them. Some proposals relate specifically to sexual offence cases; others are relevant to cases of any type.

The paper is structured as follows:

Chapter One: Establishing a Victims' Commissioner for Scotland - Questions 1 to 14

Chapter Two: Options to underpin trauma-informed practice and person-centred approaches - Questions 15 to 27

Chapter Three: Special measures to help vulnerable parties in civil cases - Questions 28 to 30

Chapter Four: Review of defence statements - Questions 31 to 33

Chapter Five: New statutory underpinning for anonymity for complainers in sexual offence cases - Questions 34 to 47

Chapter Six: The introduction of publicly funded Independent Legal Representation for sexual offence complainers where a request is made to lead evidence in court which relates to their sexual history and/or bad character - Questions 48 to 55

Chapter Seven: Creation of a specialist court for serious sexual offences - Questions 56 to 66

Chapter Eight: Consideration of issues related to single judge trials for serious sexual offences cases - Questions 67 to 76

Chapter Nine: Impact Assessments - Questions 77 to 84

You are encouraged to set out your views on the proposals in the paper and we recognise that your personal experience may have contributed to shaping your views, including as a victim of crime, a family member or friend of a victim of crime or through serving on a jury.

If you have been affected by any of the issues discussed in this consultation, information, advice and assistance can be provided by Victim Support Scotland and other organisations that provide general and specialist support.

Some of the proposals in the paper relate to technical criminal procedure. We have sought to present the issues and the questions in an accessible way so that they are understood by a range of audiences. A glossary is provided to explain specific terms.

Where reference is made to other legal jurisdictions, this is not intended to be a detailed description of the law in other countries but a summary of how it is understood to work.

Finally, a word about terminology. We acknowledge that there are different words to describe those who have experienced crime and views on which terms are used can be strongly held. Lady Dorrian's Review used the word 'complainer' in its report, this term is used when describing a person in a legal setting as the person making the allegation of crime. Others use the words 'victim' or 'survivor', and these are more commonly used when referring to the person in a broader context not restricted to the legal system. All of these terms are used in this consultation paper and the choice of term depends on the context; no inference should be drawn in relation to specific uses.