Making Justice Work for Victims and Witnesses

3 Improved Information

3.1 The consultation paper explained that the Scottish Government proposes to legislate to create a right to information for victims which supports the principles of the draft EU Directive for Victims.

Case specific information

3.2 The consultation stated that 'The Scottish Government will commission a feasibility study into developing an online information hub for justice that will provide case-specific data in Scotland. The study will also examine the extent to which such data can be made publicly available and the protections that would be needed to avoid unhelpful intrusion into the privacy of victims and witnesses or incursion into fundamental protections for accused persons. We will also investigate victims' and witnesses' views on the potential use of automatic notification of updates using text and email.'

3.3 The first question in the consultation asked "Do you agree with the principle of having a case-specific information hub for justice in Scotland" and invited consultees to comment on the reason(s) for their answer.

3.4 Fifty-five consultees explicitly answered "yes" they agreed with the principle of having a case-specific information hub for justice in Scotland and no consultees answered "no". Those responding "yes" were represented across all sub-groups. Six consultees did not answer either yes or no but offered comments.

3.5 The most common theme in comments provided by those agreeing with the principle of having a case-specific information hub was endorsement that it would improve access to information. The next most common theme, related to accessibility, was that an information hub for justice in Scotland would help to ensure consistency and clarity of information.

3.6 The consultation document recognised that not all victims and witnesses will have online access and many will need support to deal with the information they receive. The intention is therefore to ensure that support groups can access information, with appropriate consent. The consultation also recognised that an online system should not be seen as removing the need for direct contact.

3.7 More than one in five consultees supporting the principle of a case-specific information hub included reference in their comments to the importance of personal and face-to-face contact in addition to the hub. Reflecting the points made in the consultation paper, typically these consultees emphasised that whilst electronic communication is efficient and appropriate for a majority of victims and witnesses it will not be accessible and helpful for everyone.

3.8 Other relatively common themes in responses included the suggestion that local hubs will be required in addition to a national hub and concerns that a hub will need to be properly resourced and that its feasibility will be dependent on adequate funding.

3.9 There were multiple comments, from those who answered "yes" they agreed with the principle and from those offering comments without specifically agreeing or disagreeing, relating to the importance of retaining the privacy of victims, witnesses and other parties. Some of these comments made very specific reference to the Data Protection Act and one consultee specifically recommended that a full Privacy Impact Assessment (PIA) is undertaken as part of the feasibility study.

3.10 The range of other comments from single consultees or small numbers of consultees included:

• The importance of plain language to make information easily understood and the suggestion that this should be stated as a principle within the legislation;
• Concern that information collated, stored and shared may potentially prejudice the right of the accused to a fair trial;
• A caveat that checks would be needed to ensure information is accurate and up-to date;
• The need for a two-way process allowing victims to respond to information and ask questions;
• The need for consideration as to how information can be shared with relevant third parties other than victims and witnesses in order to address wider public protection issues;
• That case related information that is not publicly available will require password access;
• The need to address barriers to information access due to language or disability;
• The need to review information and advice to child victims and witnesses and ensure that confidentiality and data protection are understood by children specifically.

3.11 The draft EU Directive on Victims envisages making information available to victims on: any decision not to proceed with an investigation or prosecution; the outcome of any criminal proceedings; information about the state of the case or progress on it; the time and place of any trial; the opportunity to be notified about release or escape from detention.

3.12 The second question in the consultation asked consultees "are there any other types of case-specific information that would be of value to victims and witnesses?" i.e. over and above the information detailed in the draft EU Directive on Victims. Fifty consultees, from across all sub-groups, made comments.

3.13 The 4 most common themes within the comments regarding additional types of information that would be of value to victims and witnesses included:

• 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. One consultee, a public body, suggested that the current regime whereby victims may opt-in to receive certain information about the release from prison might be more appropriately operated on an opt-out basis.

3.14 Other recurring themes included:

• Information about the court where the case will be heard e.g. the layout, where the victims and witnesses should go, details of support available and so on; one consultee specifically mentioned information on the protection that witnesses can expect during cross-examination;
• A file or folder on progression through the justice system, time deadlines and so on; the reasons for any delays were also cited as information that should be made available;
• Information regarding a designated access or contact point;
• An explanation of the trial process to help victims and witnesses prepare;
• Information on support services / referral mechanisms for victims and witnesses who attend court.

3.15 The range of other types of case-specific information mentioned by single consultees or small numbers of consultees included:

• Reasons for appeals being allowed;
• Explanation of postponements;
• Information on non-court disposals, including compensation orders;
• Information on any threat or risk assessment;
• Information on how a victim's needs have been taken into account;
• Information on the unmet support needs of victims;
• Information to advise a victim if aggravation will be proceeded upon if evidence of statutory aggravation is passed to COPFS;
• Information for victims of offences by children, not just information on "criminal" proceedings;
• Who to contact if a community sentence has been imposed and is breached;
• Information on how authorities will protect a victim or witness;
• Any statement made by the accused with regards to remorse for the crime;
• Contact details for voluntary support groups;
• A facility for transactional services such as submitting compensation claims or expense claims.

Promoting Information Sharing

3.16 The consultation document explained whilst the proposed information hub will go a long way to improve information-sharing in the interest of victims and witnesses, some have suggested that a duty to share information to the benefit of victims and witnesses would be helpful.

3.17 The third question in the consultation asked consultees "do you believe a statutory framework is needed to promote information-sharing in the interests of victims and witnesses?" and invited comments on the reasons for answering either yes or no.

3.18 Forty-eight consultees explicitly answered "yes" to this question and 3 consultees answered "no".

3.19 One of the most common themes emerging from those who believed a statutory framework is needed was a belief that without a framework, information-sharing simply will not happen. A number of comments emphasised that whilst there is willingness to share information, there are currently barriers to doing so e.g. concerns regarding data protection issues. As one local authority commented:

"(Yes) because there exists confusion and reticence to share information sometimes simply because of misunderstanding of the nature of the action of duties under Data Protection and confidentiality. As well serving a practical purpose, a statutory framework would help demystify information sharing in this area."

3.20 One consultee, a public body, recommended that all information sharing is undertaken in compliance with the Data Sharing Code of Practice which has been prepared under the Data Protection Act.

3.21 A second very common theme emerging from those who believed a statutory framework is needed was that it will help to ensure consistency of information provision and remove the possibility of regional or other variations. A number of consultees also noted that placing a statutory requirement on public bodies to share information has proven beneficial in other areas and is therefore likely to be effective here.

3.22 Around one in five consultees supporting a statutory framework commented that it will give confidence to victims and witnesses in the support they can expect. For example, that they will receive all the information they should reasonably expect and that it indicates a victim-centred approach.

3.23 The importance of training for those involved was a theme that emerged from a small number of individuals as well as one organisation responding to the consultation. Their comments reflected the need for all relevant parties to understand their duty of care as well as the need to prioritise the safety of victims and witnesses.

3.24 Other comments from single consultees or small numbers of consultees who answered "yes", included:

• The need to build in checks and balances;
• The need to impose clear obligations;
• A suggestion that consideration could be given to a policy directive before legislation;
• The need for all communication to be tailored in terms of language and medium to meet individual needs;
• The need for limits to information available from Criminal Justice agencies;
• The need to ensure victims are referred to, or actively offered, support services, including an amendment to data protection legislation to allow sharing for the purposes of providing support in the interest of victims;
• Comment on the need for adequate resourcing.

3.25 Those answering "no", a local authority, a charity and another organisation, commented that commitment, appropriate guidance and support, and appropriate codes of practice would be more appropriate and effective than a statute.

3.26 A further 3 consultees were equivocal in their response or supported the idea of a statutory framework but with caveats. One commented that it is hard to give unqualified support without more detail as to what is being proposed and expressed concern that a one stop shop may not be the best approach to supporting victims and witnesses. Another commented that this is only necessary if there are existing legal barriers to information sharing. The third commented that whether a statutory obligation is necessary seems a matter of governmental technique.

3.27 The next question in the consultation asked consultees "What protections would need to be built into such a system?" and 48 consultees provided comments.

3.28 The predominant theme throughout the comments at this question related to the need for clear guidelines regarding confidentiality when sharing information. More specifically, some consultees referred to the need for an agreed code of practice e.g. encompassing statutory bodies and 3rd sector partners, including disclosure and performance frameworks. Others referred again to the Data Protection Act as shown in the example below from a local authority.

"The Data Protection Act 1998 is probably the main vehicle for controlling the processing of personal data and sharing data between agencies. Most areas have information sharing protocols which are agreed between the relevant agencies and we would expect a similar process for protections built into this proposed system."

3.29 Other common themes included:

• The need for any online system to be password protected/ password controlled to avoid release of information to unauthorised parties;
• That victims and witnesses should be able to determine what information relating to them individually can be made available and should not be compelled to make information available;
• That safety and privacy must be balanced; some consultees mentioned the need to protect the privacy of offenders in the same way as victims and witnesses and make specific reference to human rights principles.

3.30 Other themes recurring with slightly less frequency but noted by multiple consultees, across different sub-groups, included:

• The framework should assess the needs of victims and witnesses in interpreting information;
• The information shared should be limited to that affecting the security and safety of the victim or witness;
• Sensitive personal data needs to be identified and protected from misuse;
• Concerns that the confidentiality of 3^rd parties e.g. families of offenders might be infringed;
• Information must be removed or destroyed on a timely and appropriate basis;
• The interests of the accused and their right to a fair trial must be protected.

Understanding Sentencing

3.31 The consultation noted that the Scottish Government is considering what additional practical measures, over and above e.g. the COPFS' Victim Information and Advice (VIA) information leaflet on sentences, could be taken to try and improve public understanding of sentencing.

3.32 Question five of the consultation asked consultees "What information would help victims, witnesses and the public understand different types of sentences better?" and this was followed by a question asking "What is the best way to provide information about sentences to victims, witnesses and the public?"

3.33 Forty-seven consultees made comments on what information would help understanding of different types of sentence and a key theme amongst these comments related to the style of information used rather than the content per se. Around one in three of all consultees making comments at this question referred to the need for the information to be understandable or in plain English.

3.34 The predominant themes regarding the types of information that would be useful 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.

3.35 There were additional recurring themes regarding the format or channels for providing information, including suggestions that the proposed hub should house all existing information and literature in a central source. A number of comments included praise for the existing VIA leaflet believing that this information needs to be more widely available and accessible. One consultee noted that the Sentencing Information for Scotland website should be reinstated and promoted as an information source.

3.36 Some consultees commented on the importance of providing translations of information as well as Braille and so on. There were also comments regarding the importance of face-to-face communication as part of the mix of information channels.

3.37 Other comments from very small numbers or single consultees included:

• Explanations that actions such as tagging or early release can affect apparent sentences;
• Use of the media in high profile cases to report on realistic terms of prison sentences;
• A simplified sentencing structure more generally in order to improve understanding and ensure greater consistency; one consultee also referred to a Sentencing Council and praised the guidelines produced by the Sentencing Council in England and Wales;
• The need for age-appropriate explanations and information for children.

3.38 At the subsequent question regarding the best ways to provide information about sentences to victims, witnesses and the public, there was a recurrence of most of the themes outlined above. Forty-eight consultees made comments and the key themes related to the need to use simple, accessible language and the need to offer information in a wide variety of formats.

3.39 Around half of all consultees commenting at this question made reference to the need for wide ranging formats depending on the complexity of the information and it was commonly observed there could be no single solution. Leaflets, online channels and face-to-face communication were mentioned by large numbers of consultees.

3.40 Other common themes emerging at this question included:

• The need for school education about the justice system;
• The need for a public education campaign;
• The need for media education;
• Suggestions for use of mass media channels including press and television statements;
• Suggestion for the use of social media;
• Suggestions for pooled national resources to be available online;
• The need to provide translations, Braille, ESOL and other formats to ensure equal accessibility of information.

Notifying bereaved relatives in road death cases

3.41 The consultation noted that groups supporting bereaved families in road death cases have said how important it is for families to know when someone convicted of an offence which includes reference to a death has had their driving disqualification rescinded and driving licence returned. They also feel families should have the chance to raise any concerns they have about return of the licence.

3.42 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. The consultation then invited comments on the reasons for answers given.

3.43 Thirty-two consultees agreed that bereaved families in road death cases should be advised when the offender's driving disqualification is rescinded and their driving license returned to them. Twenty-eight of these consultees also agreed that bereaved families should be given the chance to register any concerns.

3.44 Seven consultees (four local authorities, one individual, one police organisation and one other organisation) said "no", bereaved families should not be advised when the offender's driving disqualification is rescinded. Nine consultees (3 local authorities, 2 police organisations, 2 individuals and 1 other organisation) answered no to the second question, disagreeing that bereaved families in road death cases should be given the chance to register any concerns about return of the driving licence.

3.45 The predominant theme in comments from consultees answering "yes" to both parts of the question is that this will help bereaved families feel that their views and feelings are genuinely taken into account. Some consultees expressed shock and dismay that this is not already the case.

3.46 There were comments from several consultees that this would provide an opportunity to explain the rationale behind the decision to bereaved families. However, a number of consultees believed the decision should be case specific or that bereaved families should be able to opt-out of receiving information.

3.47 Some of the 9 consultees who answered "no" to the second part of the question expressed concerns about raising the expectations of bereaved families as to the degree of influence they might have. Others felt it was not appropriate for bereaved families to influence the decision and a third set of comments suggested that the views of bereaved families should have been taken into account at an earlier stage i.e. at the time of bereavement.

3.48 Consultees who answered "no" at both parts of this question also expressed a view that the views of bereaved families should be taken into account at the plea stage and there is therefore no need to inform or consult them. Some also believed it will add to the distress of bereaved families. There was also comment on the need to balance the needs and rights of all parties.

3.49 One local authority answered "no" to the first part of the question and "yes" to the second, making the following comment:

"Most road traffic accidents involving a death result in a lifetime or 10 year ban. There is a practical issue around tracing the deceased's relatives following such a time lapse and also identifying who is a relevant family member, mother, sister, child? And whether they should all be contacted? Would they wish to be contacted following such a time lapse or would this reopen old wounds? The Judge/Sheriff or FAI would have taken into account all the facts of the case at the time of sentencing before imposing the ban under statutory law. The return of a driving licence is therefore a decision of the sentencing court and I believe that they should be allowed to make this decision unimpeded. I do believe that should victim's families wish to register concerns they should be free to do so with the PF via the VIA service, though would envisage that the practicalities of victim's families doing so, years later would be difficult, equally difficult if not impossible is the PF/crown, identifying and tracing victim's families and contacting them, unsolicited, years later which would possibly cause more upset to victims and families than good."