Making Justice Work for Victims and Witnesses

1 Executive Summary

Background overview

1.1 The Scottish Government is planning to introduce a Victims and Witnesses Bill during 2013. In May 2012 a consultation paper was issued to obtain views on a number of proposals aimed at improving the experience of victims and witnesses.

1.2 The consultation ran from May until July 2012.

Overview of consultees

1.3 The Scottish Government received 77 responses to this consultation; 59 from organisations and 18 from individuals. Responses were assigned to sub-groups for analysis purposes and these were: Police organisation (6 responses), Local Authority (17 responses); Public Body (10 responses); Voluntary / 3^rd sector organisation (20 responses); Legal Organisation (3 responses); other organisation (3 responses) and Individuals (18 responses).

1.4 While the consultation gave all those who wished to comment an opportunity to do so, given the self-selecting nature of this type of exercise, it should be noted that the findings reported here cannot be extrapolated to a wider population outwith the consultee sample.

Overview of analysis

1.5 The consultation posed a series of 54 questions relating to the proposals; some consultees provided direct answers to these questions while others submitted a more open form of response.

1.6 Responses were examined and key themes, similar issues raised in a number of responses, were identified for each question. Sub-themes; including reasons for opinions, supporting arguments, alternative suggestions or other related comments; were also noted. The key themes were then examined to identify whether any particular theme was specific to any particular consultee group or groups; for example was the theme more prominent in responses from one group of organisations than others?

1.7 Wherever possible, comments indicating support or disagreement at specific questions were quantified. It should be noted, however, that although some of the questions included a yes/no option, not all consultees gave a definitive answer. It should also be noted that not all consultees provided answers to all of the questions.

Overview of responses

1.8 For each of the proposals put forward in this consultation paper, there was majority support from those responding, although a number of consultees opted not to provide a definitive 'yes' or 'no' response. While the numbers responding made it difficult to analyse responses by sub-group, those involved in enforcement often focused on the logistics, application and enforcement of these proposals. Many of the individuals who responded to this used their own experience to illustrate their response and these often focused on the support needed by victims and witnesses.

1.9 Key themes throughout responses were:

• The need for access to information that is consistent, clear and accessible to all victims and witnesses;
• While there was support for a central hub and information sharing between agencies, there were also concerns over sharing information and the need to take into account data protection issues;
• Logistical issues in relation to administration and enforcement;
• The need to ensure that all agencies involved in this have access to adequate training, support and resources;
• A need to ensure that victims' and witnesses' expectations are managed and that they understand that information they provide is only one element of the process;
• A need to ensure that offenders' rights are recognised and that a balance between reparation and rehabilitation is managed effectively.

Improved information

Case-specific information

1.10 Fifty-five consultees agreed with the proposal for the Scottish Government to have a case-specific information hub for justice in Scotland; and no consultees disagreed with this (Q1). Key reasons for this support related to improved access to information and improved consistency and clarity of information. While there was a high level of support for this, some consultees highlighted the importance of accessibility to all; with opportunities for personal contact as well as electronic. Some consultees also raised issues over resourcing and funding for this; and the issue of data protection.

1.11 A wide range of different types of case-specific information that would be of value to victims and witnesses (Q2), was noted, with the four most common types of information being for:

• Reasons for not proceeding with an investigation or prosecution, or for proceeding with only part of a case;
• Reasons for sentencing decisions or out of court disposals;
• Information on whether the perpetrator was remanded to custody or bailed, and details of any bail conditions;
• Information on the updated status of a perpetrator e.g. changed address, prison relocation or temporary release, or progression through a community sentence.

Promoting information sharing

1.12 When asked whether they believed a statutory framework is needed to promote information-sharing in the interests of victims and witnesses (Q3), 48 consultees agreed; the key reason being that without a framework, information-sharing will not happen. Once again, there were concerns over data protection issues and that this is a barrier to information-sharing.

1.13 Question 4 asked what protections would need to be built into such a system and the key theme related to the need for clear guidelines around confidentiality and the need for an agreed code of practice.

Understanding sentencing

1.14 Question 5 asked 'what information would help victims, witnesses and the public understand different types of sentences better?' and question 6 'what is the best way to provide information about sentences to victims, witnesses and the public?' A key theme at Q5 related to the style of information used rather than the content per se, with consultees referring to the need for information to be understandable or in plain English. A wide range of information types were suggested as being useful to victims, witnesses and the public and this included:

• Information on the options available to the judge / the types of sentence that can be imposed;
• Information on the practical implications for both the offender and victim going forward i.e. how the sentence is enforced;
• Information on the minimum time that will be served or the likely time to be served;
• Information on the impact of risk on how sentences are supervised;
• Information on factors potentially influencing the sentence;
• Information on costs to the taxpayer of different types of sentence and also on the impact of different types of sentence in reducing reoffending.

1.15 In terms of providing information, key themes related to the need to use simple, accessible language and offering information in a variety of different formats, including leaflets, online channels and face-to-face communication.

Notifying bereaved relatives of return of an offender's driving licence in road death cases

1.16 Consultees were asked whether they agreed that bereaved families in road death cases should be a) advised when the offender's driving disqualification is rescinded and their driving licence returned to them and b) given the chance to register any concerns about return of the driving licence (Q7). The consultation then invited comments on the reasons for answers given. Thirty two consultees agreed (compared to only seven who disagreed) with the first option and 28 agreed with the second option (compared to only 9 who disagreed). The key theme was that this would help bereaved families feel their views and feelings were being taken into account and to help them understand the rationale behind the decision. However, there were also comments that individuals should be able to opt-out of receiving information or that bereaved families might have raised expectations in terms of their influence or that this might add to their distress.

Delivering greater certainty

Standards of Service

1.17 The Scottish Government is proposing to create a duty on relevant public bodies requiring minimum standards of service for victims and witnesses to be set and question 8 asked for views on this. Fifty-two consultees agreed with this proposal, compared to only two who did not. Key themes emerging were that:

• This will empower service users and let them know what they can expect;
• It will create a measurable standard to aim for and allow benchmarking of service standards;
• It will ensure consistency of service standards.

1.18 However, there were also comments on the need for a mechanism to deal with shortfall in standards and a complaints procedure; the need to ensure that standards are actually enforced; and the need to actively promote standards and make them accessible, not simply publish them.

1.19 Question 9 went onto ask 'do you agree that the standards should encompass both victims and witnesses', and 48 consultees agreed with this; the primary reason being that it would be inappropriate to differentiate between the two. Question 10 then invited consultees to comment on any other issues that the standards should cover in addition to those outlined and the key recurring themes were:

• Court dates should be fixed and there should be reasonable notice of court dates;
• Minimum standards should encompass a complaints and comments procedure; as well as specified timescales to deal with complaints;
• Minimum standards should apply to facilities from which services are provided;
• There should be guidance and obligations under equalities legislation in recognition of all special needs;
• Best practice, support and advice should be available during, after and beyond conviction / post trial.

Agreeing a closed court in advance

1.20 Question 11 raised the question of whether a closed court should be a) requested through a motion at the pre-trial hearing or b) made a special measure; and 18 consultees opted for option a; while 15 supported option b.

Feeling supported

Improving victim and witness care and support

1.21 At question 12, the consultation paper proposed a number of ideas that would support victims and witnesses, and which might be tested locally; consultees were asked to provide their views on piloting these; and the subsequent question (13) then asked for suggested for other models of care and support that could be utilised.

1.22 The key theme emerging was one of general support for all the possible measures (a dedicated contact point, a co-ordination/liaison/care unit, a support programme for child victims/witnesses and a central hub). While a wide variety of alternative models were put forward, each was mentioned by only one or two consultees.

Definition and identification of vulnerability

1.23 Question 14 introduced the proposal to change the definition of child witness to be up to age 18; and 47 consultees agreed with this, compared to only 3 who did not. Question 15 then suggested the amendment of the definition of vulnerable adult witness to match the requirements of the EU Directive on victims, and 49 consultees agreed with this proposal compared to only five who disagreed.

Rights-based entitlement to special measures

1.24 Question 16 went onto ask if consultees agreed that the definition of a vulnerable witness should be extended to include a) victims of sexual offences, b) victims of domestic abuse and c) those defined as automatically vulnerable in the final version of the EU Directive on Victims. Fifty-one consultees agreed with options A and B, compared to only two who disagreed; and 52 agreed with option C, with only two disagreeing. Key reasons for agreement with these proposals were that automatic entitlement is preferable, that specified categories need support and help, and these measures will help to improve the quality of evidence given.

1.25 The current position with children is that they can opt-out of special measures to which they are entitled if they so wish and if it is accepted by the court, and the SG is keen to extend this to victims of sexual and domestic abuse. Fifty-six consultees agreed that any witnesses who are automatically entitled to standard special measures should be able to opt-out of using them; the key reason being that there should be as much choice as possible. That said, a number of consultees also noted that this assumes the witness has the capacity to understand and is properly counselled to make an informed decision.

1.26 Question 18 then asked consultees whether they had any comments on the proposal to include in the legislation flexibility to extend the range of standard special measures if necessary in the future. Responses were generally favourable, welcoming a flexible approach and highlighting the benefits of being able to adapt to emerging issues as they develop.

Notification/application arrangements

1.27 Question 19 of the consultation invited "suggestions about how the administrative arrangements for special measures might be streamlined (a) for those witnesses automatically entitled to standard special measures (b) for other witnesses who may fall into the definition of vulnerable but do not automatically do so and (c) for those witnesses who wish to opt-out of using the standard special measures to which they are entitled". A total of 23 consultees provided suggestions or comments at one part of the question or more.

1.28 Key themes arising from the comments across all parts of the question related to the need to ensure people know of their right to special measures as early as possible in the process, the need to minimise bureaucracy and offer a streamlined service; and that a dedicated service for supporting victims and witnesses would help streamline administrative procedures.

Additional support for child witness' evidence

1.29 At question 20 of the consultation consultees were asked "do you have any concerns about the proposal to put the Guidance on Joint Investigative Interviewing of Child Witnesses in Scotland on a statutory footing?" Consultees answering "yes" were invited to provide further details of their concerns. Thirty-five consultees answered "no" they did not have concerns and only four consultees said they had concerns and went on to give comments.

1.30 Question 21 then went on to ask 'should we seek to remove the presumption that child witnesses under age 12 in prescribed sexual or violence cases should give evidence away from the court building, while retaining the ability for them to do so?' Nineteen consultees agreed with seeking to remove the presumption that child witnesses under age 12 in prescribed sexual or violent cases should give evidence away from the court building, while retaining the ability for them to do so; 18 consultees said 'no'.

1.31 The key theme in comments from those who answered "yes" related to the need for flexibility to allow decisions on a case by case basis; a capacity for choice and to choose what suits a child best were also noted. Of those who answered "no", a key comment was that the problem is not with the presumption but the way in which it is applied and it was suggested that an opt-out facility is needed. Several consultees who answered "no" felt that children needed protection at all times and that protection is essential.

1.32 Question 22 went on to ask 'should the submission of Child Witness Notices be made a compulsory part of pre-trial hearings?' and 31 consultees answered 'yes', compared to only 2 who disagreed. The key advantage was that this would help avoid unnecessary delays and would be in the best interests of the child.

Visual recording of vulnerable witness' evidence

1.33 Question 23 asked "Do you have any concerns about the proposal to make clear that section 271M of the Criminal Procedure (Scotland) Act 1995 does include provision for visual recording of evidence?" Thirty-three consultees answered "no" and the key reasons were that this might improve the availability and quality of evidence and that this change is both logical and appropriate. Only 5 consultees had any concerns.

1.34 Question 24 then went onto ask 'Do you believe we need specific provision allowing for visual recording of supplementary evidence "and invited further comments. Thirty-one consultees answered "yes", compared to only 3 who answered "no". The main themes emerging from those who answered 'yes' was a need for specific provision related to ensuring consistency of evidence and giving clarity within legislation. Several consultees also commented that this ensures the same measures are available throughout the UK.

Improved support for communication needs

1.35 Question 25 asked consultees "do you agree with the principle of extending the types of special measures available specifically to help meet communication support needs? and 50 consultees answered "yes", with only one consultee disagreeing.

1.36 Question 26 then asked "If you agree in principle we should extend the types of special measures available to meet communication support needs, do you have any views at this stage on which option/model you would favour? Intermediaries, witness profiles or some other means". Twenty-six consultees favoured intermediaries, 16 favoured Witness profiles and 8 suggested some other option.

Existing support for people with mental disorders

1.37 Question 27 asked "If the role of Appropriate Adults in relation to suspects is defined in statute, do you believe the same is necessary for their role in relation to victims and witnesses?" Forty-five consultees answered "yes", compared to only 2 who answered "no." The main themes emerging from those who answered "yes" were that everyone involved in proceedings should have the same rights, that this gives clarity and that it provides essential protection.

Feeling Safe

Right of victims of sexual violence to choose the gender of their interviewer

1.38 Question 28 asked "Do you agree that victims of sexual violence should have the right to choose the gender of the person who interviews them?" and 47 consultees agreed, compared to only 5 who disagreed.

1.39 The key theme emerging from those who agreed with the proposal is that this represents good practice and a victim centred approach that will support victims appropriately. However, even amongst those who agreed with the proposal, there were some concerns about resource issues and that there might be difficulty in implementing this on all occasions. Other key themes were that this would ensure comfort with the interview process, it might help secure better evidence or, conversely, not doing so might jeopardise evidence.

Disclosure of personal details

Question 29 asked "Do you agree with the proposal that it should not be necessary to disclose the witness' personal circumstances (e.g. medical details) in an application for standard special measures?" and 43 consultees agreed, while only 5 disagreed.

1.40 The key theme emerging from those who agreed with this proposal were that there is no need for this to be public information. Other themes were that only enough information should be given to clarify the reason for an application, that an assessment of vulnerability should be sufficient or that only the person making the referral needs the information.

Advising victims abut offender temporary release

1.41 Question 30 asked 'do you agree that victims (or parents, carers or relatives) should be given the opportunity to make written representations about what additional conditions might be included in the licence when an offender first becomes eligible for temporary release?' The majority of consultees (46) were in agreement with the proposal and only 5 disagreed. A key theme emerging was that it is necessary for the victim to be heard or that victims and their families have a right to be heard or feel listened to.

1.42 However, while there was broad support for this proposal, a number of qualifying comments were also made, the key one referring to the need to manage victim expectations or that victims need to be made aware that their representation will be considered but not necessarily agreed to.

Investigative anonymity orders

1.43 Question 31 asked 'Should we seek to introduce Investigative Anonymity Orders in Scotland?' A majority agreed with this, and only 5 disagreed. Key themes from those who agreed were that this would help witnesses to speak out; and that this allows courts to protect witnesses from intimidation or harm.

1.44 Question 32 then went onto ask 'If you think we should, in what circumstances or for which cases should they [IAOs] be used?' and 25 consultees provided a response. A wide range of crimes for which an IAO might be suitable were noted and these included serious and organised crime, serious sexual offences, murders/ homicides, drug related crime, serious violent offences, predatory crimes / stalking and drugs.

Feeling involved

Sentencing policy

1.45 Question 33 of the consultation paper asked 'what mechanisms could be used to ensure victims' interests are taken into account when sentencing policy is developed?' A wide range of suggestions emerged. Key suggestions were for consultation among victims and their representative organisations, representation from victim support groups at meetings on sentencing policy, research and evidence to feed into sentencing policy, impact statements / victim statements, greater clarity in sentencing policy and work in conjunction with Scottish Sentencing Council / establish Sentencing Commission for Scotland.

Oral representation to the Parole Board

1.46 Question 34 in the consultation paper asked 'do you agree with the proposal to allow victims (or relatives in appropriate cases) to speak to a member of the Parole Board before a Life Prisoner Tribunal considers the release of an offender on licence?' A majority (44) of consultees agreed and only three disagreed. Key reasons for support for this proposal were that this would help victims feel their views count and are respected; and that it is important for victims to be consulted, kept informed and their views listened to.

Victim statements

1.47 Question 35 asked 'Do you agree with the proposal to allow Victim Statements to be submitted to the court at any time after the prosecutor moves for sentence (or the accused pleads guilty or is found guilty), but before sentence is passed?' A total of 49 consultees responded to this question, all of whom agreed with this proposal. The key comment was that this allows for the victim's views to be heard or for others to hear about the impact of the offence upon the victim.

1.48 Other key themes were support for the victim's statement to be presented at any time before sentence is passed or that victims should not be deprived of the right to submit a victim statement simply because of court processes or early pleading by the accused.

Child under 14

1.49 Question 36 asked 'do you agree with the proposal to extend eligibility for the Victim Statement scheme so that a carer of a child under age 14, who is not the direct victim of the crime, can make a Victim Statement on their behalf?' Forty-eight consultees agreed with this and none disagreed. Many simply reiterated their support, although some also noted that this proposal would ensure the views of victims and the impact of the crime upon them will be heard.

1.50 That said, while there was almost universal agreement with this proposal, there were some qualifying comments made. For example, if a child aged under 14 years wants to make their victim statement, they should be allowed to; or that children should still be encouraged to express their own feelings about the impact of the crime. There were also some calls for appropriate support mechanisms being in place, the need to take into account reports from professionals and support agencies and the need to extend this proposal to include other appropriate adults.

Extending eligibility

1.51 Question 37 asked 'do you agree with the proposal to amend the definition of carer in relation to the Victim Statement scheme so that the carer who makes the statement on behalf of a child under 14 does not have to have been the carer at the time of the (alleged) offence?' Of the 45 consultees responding to this question, 44 agreed with the proposal and none disagreed. The key theme was that this would be a reasonable change, or that there is no need for the carer to have been there at the time of the offence.

1.52 Question 38 then went onto ask 'what more could be done to acknowledge and take into account the interests of victims and witnesses?' Forty-five consultees provided comment and a key theme was around provisions such as information, support, counselling and implementation of special measures for victims and witnesses. Other key themes emerging were the need for partnership working and training, data recording and research, the need for a Victims' Commissioner or an independent, non-government agency to represent victims and witnesses and the need for improvements and / or streamlining the court process. There were also references to the need for restorative justice and independent legal representation.

Making Offenders Pay

A right to compensation

1.53 Question 39 of the consultation paper asked 'do you agree that courts should be required to consider the issue of compensation in all cases where an identifiable victim has suffered injury, loss or distress?' and 36 agreed, while only 7 disagreed. Key themes from those agreeing with this proposal were that courts need to be required to consider the issue of compensation in all cases where an identifiable victim has suffered injury, loss or distress; that this holds offenders directly accountable for their crime(s) or that it helps them to appreciate the impact of their actions upon their victim(s); that this links the crime to the victim or that this allows victims to be directly compensated to offset any loss or payments, including medical treatment, loss of earnings, counselling, stress and anxiety etc. However, a small number of consultees also noted a need to take the offender's ability to pay into account or queried what would happen if a fine was not paid.

Victim Surcharge

1.54 The Scottish Government is proposing to apply a surcharge in cases that result in a court fine, with the potential to roll out surcharge arrangements to custodial sentences, community sentences and direct measures after a bedding-in period and possible refinements in the light of that. Question 40 asked 'Do you support the principle of adopting a victim surcharge?' and the majority (30) of those responding answered yes, with only 7 disagreeing. However, there were some concerns over the logistics of enforcement and administration and the viability of, for example, an offender's ability to pay or the practicalities of collection.

1.55 Question 41 then went onto ask 'do you agree that the surcharge should only be applied to court fines in the first instance?' and 18 consultees agreed, compared to 10 who did not. Again, there were some concerns over the collection and enforcement of the surcharge. Of the consultees disagreeing with this proposal, most noted that the surcharge should be applied to all people convicted of an offence, and not just court fines.

1.56 Question 42 of the consultation paper then went onto ask 'should we consider the possibility that legislation could include a provision to roll out application of the surcharge to custodial sentences, community sentences and direct measures at a later date?' Of those providing a definitive answer to this question, 18 agreed and 10 disagreed.Once again, there were comments that this should apply to all people who have committed an offence. There were also some concerns over ability to pay and the impact on an offender's family or that this would not support the long term aim of reducing re-offending.

Use of the revenue raised

1.57 Question 43 then asked consultees 'do you agree that revenue accumulated from the surcharge should be used primarily to support victims?' and the majority of those (30) responding answered 'yes', with only 3 consultees disagreeing. Once again, there were concerns raised over the logistics, the operation and enforcement of this scheme and a reference was made to the possibility of funding restorative justice services.

1.58 Question 44 asked 'do you think the surcharge should be a flat rate or a variable scheme that reflects the size of a financial penalty?' Of those providing a definitive response, the majority (21) had a preference for a variable rate and only 5 consultees preferred a flat rate.

1.59 Most of those noting a preference for a variable scheme agreed that it is important for the surcharge to be flexible and relate to the crime committed, the penalty applied and the assets available to the perpetrator. This approach was also seen to reflect the gravity of the offence or the offender's ability to pay.

1.60 Those consultees who felt there should be a flat rate surcharge were then asked, 'if you think there should be a flat rate surcharge, what level should it be set at' and were offered the options of £15, £20, £30 or £other and asked to specify what this rate should be. Of the 5 consultees who had stated a preference for a flat rate surcharge, only 3 gave a response to this question. Two of these opted for a level of £15 and one suggested a flat rate but on a rising scale depending on the seriousness of the offence.

1.61 Consultees who had noted a preference for a proportionate surcharge were asked 'if you think there should be a proportionate surcharge, how do you think this should work?' and were given two options: a proportionate amount added to the value of the financial penalty, or other, and asked to specify what this should be (question 46). Of the consultees choosing one of these two options, views were polarised on whether this should be a percentage amount (mentioned by 7 consultees) or some other amount (mentioned by 9 consultees). Most of those suggesting the other option considered the surcharge should be relative to the seriousness of the crime and / or the circumstances of the offender.

1.62 Question 47 then went on to ask 'if you think there should be a proportionate surcharge, do you think there should be minimum and maximum levels set?' Of those responding, 7 agreed with the proposal and 12 disagreed.

1.63 Question 48 then went onto ask 'if you think there should be a proportionate surcharge, what should a) the minimum be? and b) the maximum be?' and 12 consultees responded. Only 2 consultees mentioned a specific amount for either a minimum or maximum figure; these were a minimum of £1 with no maximum figure, or a minimum of £25 with no maximum figure.

1.64 Question 49 asked 'do you agree that priority should be given to any compensation payment to the victim, followed by the surcharge and then the principal fine?' Of those responding to this question; the majority (28) agreed and only one disagreed.

Restitution Orders

1.65 Question 50 asked 'Do you agree with the suggestion that there should be restitution orders whereby those who assault police officers may be sentenced to pay into a fund to support treatment and care of police victims?'; Twenty-one answered 'yes' and twelve answered 'no'. The key reason for support of this was that it is right for a contribution from offenders to support treatment and care of victims who are police officers; although those who disagreed felt this should apply equally to all public servants who are assaulted in the course of their work.

1.66 Question 51 then went onto ask 'do you agree that the Scottish Government should set the purposes to which the fund to support treatment and care of police victims should be applied?' and 20 consultees agreed, compared to 8 who did not. There was little by way of additional commentary.

1.67 Q52 then asked 'do you think limits for the size of a restitution order should be as described in paragraph 145 (the same limits as exist for compensation orders)?' Of those responding, 19 agreed compared to only 4 who disagreed. Most of those who agreed did not choose to provide any additional commentary, although 2 local authorities noted that the limits are appropriate providing the means and debts of the individual are taken into account when setting the amount of the restitution order. Of those who disagreed, 2 noted the need for access to an equal system for all victims of crime.

1.68 Question 53 asked consultees, 'do you agree that priority in collection and enforcement should be given to any compensation payment to the victim, followed by the restitution order and then any fine?' and the majority (26) agreed with the proposal compared to only 3 who did not.

1.69 The final question in the consultation paper asked 'do you think restitution orders should be extended to groups other than the police?' and, if so, to suggest which group(s) of workers should also benefit from a fund supported by restitution orders. The majority of those responding agreed with this proposal and only 4 disagreed.

1.70 The key groups of workers that consultees considered should also benefit from a fund supported by restitution orders were all groups of worker covered by the Emergency Workers Act, victims of crime as a result of service to the public / any public servant within the jurisdiction of the Scottish Government, local authority staff, health workers / social work staff, fire and rescue staff and ambulance service staff.