Improving victims' experiences of the justice system: consultation

Chapter One: A Victims' Commissioner for Scotland

Background

In a paper to the Victims Taskforce in 2020 victim support organisations set out four key themes raised in feedback from people affected by crime, regarding how their experience of the criminal justice system could have been improved. These were: being heard, accessing information, feeling safe and experiencing compassion. These themes were used to inform the vision for a victim-centred approach agreed by the Victims Taskforce, the terms of which are set out in the introduction to this paper.

Victim Support Scotland (VSS), in its paper Making the case for a Victims' Commissioner for Scotland, has suggested that the creation of an independent Victims' Commissioner for Scotland would "allow the voices, experiences and views of those affected by crime to be heard and to influence decision making" thereby offering a means of addressing some of the issues raised by victims and helping to achieve the vision agreed by the Victims Taskforce.

The concept of a Scottish Victims' Commissioner has been raised several times since devolution. David Stewart MSP introduced a Member's Bill on this issue in 2010. There has also been a petition and campaign for the creation of a Commissioner role, led by a family bereaved by crime.

The Victims Taskforce considered the advantages and disadvantages of introducing such a role in Scotland at its meetings of September 2019, December 2020 and March 2021. Despite differing views amongst members, it was agreed that there was an appetite for a Scottish Victims' Commissioner. Perhaps most importantly, there was a clear mandate from victims – which was subsequently reflected in the VSS paper.

The Scottish Government committed to establishing a Victims' Commissioner in the most recent Programme for Government. This is in line with the priority we place on hearing victims' voices and offering approaches to justice which place victims at the heart. This consultation therefore seeks views on the more detailed aspects of how this role should be established.

Victims' Commissioners, or similar roles, already operate in a number of jurisdictions, though with varying remits and powers. These roles tend to rest on a statutory underpinning, with, for example, legislation prescribing the functions to be carried out by the post-holder and often containing reporting obligations, governance structures and a requirement to consult with victims and survivors. However, there are other examples where the appointment is more loosely defined, for example, as a mayoral appointment in London.

Such commissioners elsewhere tend to have a role that is heavily focussed on engagement with victims and witnesses, their representative organisations, government and criminal justice agencies and taking forward reviews and reports on matters of interest. The role of many commissioners is dedicated to identifying and addressing issues that are of general application and affect a number of victims, and do not involve the commissioner providing support or advice in relation to individual cases. Further information on similar roles in England and Wales, London, Northern Ireland, and the Australian states of Victoria and South Australia can be found in the annex to the Victims' Commissioner Discussion Paper for the Victims Taskforce meeting of December 2020.

There are also other existing commissioner roles in Scotland that may provide guidance, for example the Children and Young People's Commissioner Scotland (CYPCS) whose role is to promote and protect the rights of children.

With this background and the existing expertise within Scotland, across the UK and beyond, Scotland is in the favourable position of being able to draw from domestic and international practice whilst at the same time being able to design the role to meet the unique needs of victims in Scotland. Through this chapter of the consultation, the Scottish Government is keen to gather views on how this can best be achieved.

Independence of role and accountability

We propose that one of the core tenets of the Victims' Commissioner role should be its independence from the Scottish Government and criminal justice agencies, and that the role be established in legislation. We have come to this conclusion based on input from victim support organisations, people with lived experience and research into how similar roles operate.

However, there is a range of options for establishing the role and we would welcome views on our proposals around the independence of, and legal basis for, a Victims' Commissioner.

There are a number of existing commissioner roles that are both statutory and independent from the Scottish Government. For example, the CYPCS, established under the Commissioner for Children and Young People (Scotland) Act 2003, and the Scottish Biometrics Commissioner, established under the Scottish Biometrics Commissioner Act 2020. Both commissioners are nominated by the Scottish Parliament, appointed by the Queen and funded via the Scottish Parliamentary Corporate Body.

The advantage of such an approach would be both a clear legislative underpinning for the role and a transparent relationship with the Scottish Ministers and criminal justice agencies, making provision for co-operation, collaboration and challenge where required. It would help to foster a sense of trust in the commissioner's ability to act impartially and, where necessary, hold the Scottish Ministers, criminal justice agencies and those providing services to victims to account using the powers assigned to the role in statute (see the 'powers and recourse' section, below). A disadvantage of such an approach would be the time taken for the legislation needed to establish the role to proceed through Parliament.

An alternative option would be to establish an independent but non-statutory role, such as that of the Scottish Veterans' Commissioner (SVC). The SVC is non-statutory, appointed by Scottish Ministers but not established in legislation. The office of SVC has no statutory functions, powers or duties, with objectives determined administratively by Scottish Ministers and set out in terms and conditions of appointment. These state that the SVC must act within and in accordance with the expectations placed on the office by Scottish Ministers and that the SVC is accountable to Scottish Ministers for their actions and decisions of office.

The primary role of the SVC is to improve outcomes for veterans in Scotland, by engaging with, listening to, and acting on the experience of veterans, individually and collectively, and to be an ambassador for veterans in Scotland, helping public services focus on veterans' experiences of their service provision. This approach has worked successfully for the SVC, without challenge, since 2014. Although SVC recommendations are not enforceable by law, delivery partners have worked collaboratively to deliver on them and this has resulted in significant improvement (with progress reported openly on the SVC website). With respect to a Victims' Commissioner, this approach would have the advantage of being able to progress the establishment and appointment of an independent commissioner (albeit appointed by the Scottish Ministers) without being tied to a legislative timetable. The main disadvantages would be the potential for the role to be removed without any Parliamentary involvement and the lack of statutory powers to hold relevant authorities to account.

Question 1: To what extent do you agree or disagree that the Victims' Commissioner should be independent of the Scottish Government?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

Question 2: To what extent do you agree or disagree that the Victims' Commissioner should be a statutory role?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

The model for establishing and appointing the Commissioner will determine who they are accountable to. An option is for them to be accountable to the Scottish Parliament, and thereby the people of Scotland, as is the case with the CYPCS and the Scottish Biometrics Commissioner. Such a model could see the Commissioner required to publish and lay annual reports before Parliament detailing their work in the preceding 12 months, including issues identified and recommendations made. The Commissioner could also be required to publish and lay a multi-year strategic plan before Parliament.

Question 3: To what extent do you agree or disagree that the Victims' Commissioner should be accountable to the Scottish Parliament?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

Question 4: How do you think the Victims' Commissioner should be held accountable? Please select all that apply.

a) annual report to be published and laid in the Scottish Parliament

b) multi-year strategic plan to be published and laid in the Scottish Parliament

c) other – please provide details

Please give reasons for your answer.

Functions and remit

As is noted above, victims have stated that the key areas for improvement should be around being heard, accessing information, feeling safe and compassion. It is essential that the functions and remit of a Victims' Commissioner for Scotland are shaped around this feedback and enable the commissioner to raise awareness of and make recommendations on the needs and issues identified by people affected by crime in Scotland.

Taking this into consideration, and looking at how the role operates elsewhere, possible functions could include:

• raising awareness/promotion of victims' interests and rights
• monitoring compliance with the Victims' Code for Scotland, the Standards of Service for Victims and Witnesses and any other relevant legislative requirements
• promoting best practice by the criminal justice agencies and organisations that provide services to victims, including championing a trauma-informed approach
• undertaking and/or commissioning research, in order to produce reports and make recommendations to the Scottish Government, criminal justice agencies and organisations that provide services to victims

Question 5: In your view, what should the main functions of the Victims' Commissioner be? Please select all that apply.

a) raising awareness/promotion of victims' interests and rights

b) monitoring compliance with the Victims' Code for Scotland, the Standards of Service for Victims and Witnesses and any relevant legislation

c) promoting best practice by the criminal justice agencies and those providing services to victims, including championing a trauma-informed approach

d) undertaking and/or commissioning research, in order to produce reports and make recommendations to the Scottish Government, criminal justice agencies and those providing services to victims

e) other – please provide details

Please give reasons for your answer.

Consideration needs to be given as to how far the Victims' Commissioner's remit should extend. For example, their focus could be on victims in the criminal justice system, or it could look beyond that and incorporate victims' experiences of the civil justice system or cases referred to the Children's Hearings System.

Consideration also needs to be given to situations where residents of Scotland are victims of crime outwith Scotland. For example, the Foreign, Commonwealth and Development Office (FCDO) is included in the remit of the Victims' Commissioner for England and Wales by virtue of the Domestic Violence, Crime and Victims Act 2004. In October 2019 the Commissioner published Struggling for Justice: Entitlements and Experiences of Bereaved Families Following Homicide Abroad, which included recommendations directed at the FCDO, Ministry of Justice, police and others. Further work would be required to understand how such a remit could operate in a Scottish context.

Question 6: What do you think should be within the remit of a Victims' Commissioner for Scotland? Please select all that apply.

a) the experience of victims in the criminal justice system

b) the experience of victims in the civil justice system

c) the experience of victims in relation to the Children's Hearings system

d) the experience of victims resident in Scotland, but where the crime has taken place outwith Scotland

e) other – please provide details

Please give reasons for your answer.

Powers and recourse

It is essential that the Victims' Commissioner has the appropriate powers and means of recourse necessary to fulfil the functions of the role. These will be crucial in empowering the commissioner to effectively carry out investigations into systemic issues affecting victims and gather the necessary evidence to prepare reports and make recommendations to the Scottish Government, criminal justice agencies and those providing services to victims.

Looking to other commissioner roles, there are a number of different approaches. The CYPCS has the power to carry out what are referred to as 'general investigations' and 'individual investigations' into whether, by what means and to what extent, a service provider has regard to the rights, interests and views of children and young people in making decisions or taking actions that affect those children and young people (or a specific child or young person for individual investigations). In conducting an investigation, the CYPCS may require any person to give evidence or to produce certain documents - but only where the Parliament could require that person, under section 23 of the Scotland Act 1998, to attend its proceedings for the purpose of giving evidence or producing documents. The Victims of Crime Commissioner in Victoria, Australia, has the power to carry out an inquiry on any systemic victim of crime matter, at the request of any person or at the Commissioner's own behest.

The CYPCS, Scottish Biometrics Commissioner and Domestic Abuse Commissioner for England and Wales all have statutory powers to make recommendations to relevant persons/bodies and, significantly, require them to respond to those recommendations within a specified timescale. Their response must state what action the person/body has done or proposes to do in response to the recommendation or, if nothing, reasons for that decision. In contrast, the Victims' Commissioner for England and Wales has more limited powers. A report published in November 2020 identified significant gaps in the powers of the Victims' Commissioner in relation to the Victims' Code in England and Wales.

In designing the role of a Victims' Commissioner for Scotland, it may be that a combination of these powers is the most appropriate option. This could see the Commissioner with a power to carry out investigations into systemic issues affecting victims of crime, to report on these issues and to make recommendations to the Scottish Government, criminal justice agencies and those providing services to victims in Scotland. This could include a power to require persons to cooperate with the investigation. Further powers could provide for the commissioner to require those persons to which the recommendations are addressed to respond to the recommendations within a specified timescale.

Question 7: What powers do you think the Victims' Commissioner should have? Please select all that apply.

a) the power to carry out investigations into systemic issues affecting victims of crime

b) the power to require persons to give evidence in the course of an investigation

c) the power to make recommendations to the Scottish Government, criminal justice agencies and those providing services to victims

d) the power to require persons to respond to any recommendations made to them (by the Victims' Commissioner)

e) other – please provide details

Please give reasons for your answer.

Engagement

The work of a Victims' Commissioner must be directly informed by victims' voices, through engagement with victims and those who support them. In its paper, Making the case for a Victims' Commissioner for Scotland, VSS stated that the role of Commissioner should come with "a commitment to engage directly with victims and witnesses" and suggested that this could be facilitated through "victim experience panels to give victims a forum to advocate themselves for the changes they believe would make the most difference for them".

There are currently a number of victim and survivor reference groups operating in Scotland, facilitated by victim support organisations. These reference groups, in addition to other important functions, feed into the work of the Victims Taskforce to directly inform members of their experience and advise on what needs to change. The Commissioner, once appointed, may wish to consider how they engage with these established groups to learn from their collective experience.

Looking to other commissioner models, the legislation establishing the CYPCS requires that the CYPCS takes reasonable steps to consult with children and young people, and organisations working with and for children and young people, on the work to be undertaken by the commissioner. There is a further stipulation that the CYPCS must pay particular attention to groups of children and young people who do not have other adequate means by which they can make their views known. The legislation establishing the Domestic Abuse Commissioner for England and Wales takes a different approach in that it requires the commissioner to establish an advisory board. The membership of this Board must include at least one person representing the interests of victims of domestic abuse and at least one person representing charities/other voluntary organisations working with victims of domestic abuse.

Question 8: To what extent do you agree or disagree that the Victims' Commissioner should be required to consult with victims on the work to be undertaken by the Commissioner?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

Question 9: How do you think that engagement with victims should take place? Please select all that apply.

a) advisory board, including victim representatives

b) victims' reference group

c) focussed consultations with victims

d) ad hoc engagement with victims

e) other – please provide details

Please give reasons for your answer.

Question 10: Are there any specific groups of victims who you think the Victims' Commissioner should have a specific duty to engage with? If so, who are they and how should that engagement take place?

Yes – please provide details

No

Unsure

Please give reasons for your answer.

Question 11: To what extent do you agree or disagree that the Victims' Commissioner should be required to consult with organisations that work with victims, on the work to be undertaken by the Commissioner?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

It is also worth considering whether there are other bodies or organisations that the Victims' Commissioner should have a duty to consult or work with. For example, the CYPCS may have an interest in matters relating to young victims of crime and the Scottish Human Rights Commission an interest in any human rights issues. It may not be necessary to list such organisations in primary legislation, but rather allow for the Commissioner to determine how and with whom such consultation takes place in order to fulfil their statutory functions.

Question 12: Are there any other relevant bodies or organisations that may have an interest in the work to be undertaken by the Victims' Commissioner?

What the Commissioner can't do

It will be essential to clearly set out the role and remit of the Victims' Commissioner, including any limitations, to ensure transparency and manage the expectations of those the commissioner will represent. As detailed in the sections above, it is proposed that the commissioner has a key role in the protection and promotion of victims' rights, advancing the voices of victims, influencing change and ensuring criminal justice agencies meet their responsibilities under the Victims' Code.

To inform the work of the Victims' Commissioner, it will be essential for them to engage directly with people affected by crime. However, to allow the commissioner the independence and resources to focus on identifying common issues and influencing systems-level change, there will need to be some limitations on their remit. We do not propose that the commissioner will champion or intervene in individual cases. This view acknowledges that the criminal justice agencies have established complaints procedures which they are required,

under section 2 of the Victims and Witnesses (Scotland) Act 2014, to set out in their Standards of Service for Victims and Witnesses. Furthermore, if someone does not feel their complaint has been dealt with satisfactorily, they can ask the Scottish Public Services Ombudsman to adjudicate - with the exception of complaints about Police Scotland, which can be referred to the Police Investigations & Review Commissioner. This approach would not preclude the commissioner from considering individual cases in order to understand the national picture.

In the examples we have considered of commissioners in other jurisdictions, those commissioners do not provide direct support to victims (though they can signpost or refer to services), offer legal advice, influence or interfere in criminal investigations or proceedings, or become involved in decisions around compensation for victims. They do not champion individual cases, rather they listen to victims in order to identify common issues and advocate for victims' rights within the justice system.

Some roles do take on more of an ombudsman function. For example, the Canadian Office of the Federal Ombudsman for Victims of Crime has a role in reviewing complaints about federal government departments, agencies, laws or policies. However, they do not advocate on behalf of individual victims or provide legal advice.

Question 13: To what extent do you agree or disagree that the Victims' Commissioner should not have the power to champion or intervene in individual cases?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

Question 14: Are there any other matters relating to the proposal to create a Victims' Commissioner for Scotland you would like to offer your views on?