Making Justice Work for Victims and Witnesses

4 Delivering Greater Certainty

Standards of Service

4.1 The consultation stated that 'the Scottish Government proposes to create a duty on relevant public bodies requiring minimum standards of service for victims and witnesses to be set'. Question 8 of the consultation asked whether consultees agreed with the proposal and invited comments on the reasons for giving a "yes" or "no" answer.

4.2 Fifty-two consultees explicitly said "yes" they agreed with the proposal to create a duty on relevant public bodies to publish minimum standards of service for victims and witnesses. Of these 49 went on to give comments.

4.3 Only 2 consultees, one individual and one voluntary organisation, said "no" and a further 3 gave no direct answer but offered comments.

4.4 The key themes that emerged from large numbers of consultees agreeing with this proposal, and across sub-groups, were:

• 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.

4.5 Other recurring themes included:

• The need for a mechanism to deal with shortfall in standards and a complaints procedure;
• The need to ensure that standards are actually enforced;
• The need to actively promote standards and make them accessible, not simply publish standards.

4.6 The range of other comments from single consultees or very small numbers of consultees who answered "yes" they agreed with the proposal included:

• The need for standards to be explicit;
• The lack of any reason not to create a duty;
• The need to ensure the rights of victims are as well recognised and resourced as the rights of the accused;
• The need to go further than a charter or minimal standards and a suggestion that a victim's law is required;
• The need for standards in relation to cases of children dealt with in the Children's Hearing System and via other interventions;
• The need for standards to apply to both statutory and voluntary agencies, was noted by one voluntary organisation; conversely another voluntary organisation commented that a statutory obligation is not appropriate for the voluntary sector;
• The need to create an accessible document that victims can refer to in order to understand their entitlement in terms of support and information;
• The benefit of introducing minimum standards as a statutory requirement but not part of legislation, in allowing amendments to accommodate new or changing requirements in the future;
• The benefit of removing a necessity for each agency to develop its own set of standards;
• The need for information on standards in accessible formats including e.g. symbol enhanced versions;
• The need for standards to also cover vulnerable accused;
• The need for standards to cover all children up to age 18.

4.7 The 2 consultees who answered "no", one individual and one voluntary organisation commented, like some of those who answered "yes", on the need to do more than simply publish minimum standards, reinforcing comments that the standards must be monitored and enforced.

4.8 Consultees were asked at question 9 "do you agree that the standards should encompass both victims and witnesses?" and were invited to make further comment if they answered "no". Forty-eight consultees explicitly answered "yes" they agreed that the standards should encompass both victims and witnesses and 21 of these gave comments supporting their stance even though they were not asked to do so.

4.9 The key theme within the supporting comments of those who answered "yes" was that a differentiation between victims and witnesses would be inappropriate in this context and that both deserve equal treatment; there was recognition in some comments that victims may also be witnesses. One or two consultees commented that a tailoring of standards may be needed for each audience.

4.10 Only 3 consultees said "no", an individual, a voluntary organisation and a legal body. Their comments were that victims and witnesses should be dealt with differently and that sometimes their agendas may come into conflict, that their needs may be different and that whilst victims may also be witnesses, a majority of witnesses will not be victims.

4.11 The consultation paper detailed an expectation that the core standards will set out for victims and witnesses:

• The levels of service that they can expect to receive e.g. about the type and timing of information about their case;
• The information they can expect about what their rights are, including the information they are entitled to about why decisions have been made;
• The information they can expect before giving evidence in court e.g. about the court process and about special measures;
• That information will be provided in plain language, translated if necessary;
• That they will be treated with dignity and respect, and that high standards will be provided regardless of race, age, gender, disability, ethnicity, religion or sexual orientation;
• That suitable arrangements will be made for those with a disability;
• How information they provide can be used in the justice system;
• How to make a complaint if unhappy with the service provided and informal attempts to resolve the matter have been unsuccessful.

4.12 At question 10, consultees were invited to comment on any other issues that the standards should cover in addition to those already outlined. Thirty-nine consultees made comments at this question and the key recurring themes across sub-groups included:

• Court dates should be fixed and there should be reasonable notice of court dates; one consultee also commented that there should be advance notification if not required in court on particular days;
• Minimum standards should encompass a complaints and comments procedure; comments included suggestions of the need for specified timescales to deal with complaints;
• Minimum standards should apply to facilities from which services are provided i.e. courts and cover wide ranging aspects such as a safe environment, separate facilities for victims and witnesses and so on;
• 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.

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

• Standards should address meeting the needs of those with protected characteristics e.g. those who are transgender;
• There should be specific standards or variations to standards for certain categories of offence e.g. sexual offences;
• Standards should include procedures for the review of decisions;
• Standards should encompass staff training requirements;
• Standards should encompass physical safety and witness protection issues;
• Standards should encompass all of the rights contained in the EU Directive;
• Standards should encompass redress if rights are breached;
• A suggestion that a duty might be placed on Local Authority Criminal Justice Services to work in a prescribed way with offenders to address issues of victim impact;
• Standards should encompass the use and handling of information provided by victims and witnesses;
• Standards should comprise part of a wider set for the police and other agencies to create excellence in service provision.

Agreeing a closed court in advance

4.14 The consultation stated that 'the Scottish Government wishes to ensure that the matter of a closed court is considered at an early stage in appropriate cases and that vulnerable witnesses know as early as possible if they will be able to give their evidence in private'.

4.15 At question11 consultees were asked "do you agree that a closed court should be: (a) requested through a motion at the pre-trial hearing (First Diet, Intermediate Diet or Preliminary Hearing)? or (b) made a special measure (i.e. the subject of a Child Witness Notice or Vulnerable Witness Application)?"

4.16 Eighteen consultees agreed that a closed court should be requested through a motion at the pre-trial hearing and answered "no" or did not answer at part (b). Fifteen consultees agreed that a closed court should be made a special measure (i.e. the subject of a Child Witness Notice or Vulnerable Witness Application) and answered "no" or did not answer at part (a).

4.17 Two consultees answered both "yes" and "no" at part a) and 9 consultees answered yes to both parts of the question believing it should not be an either/or option but closed courts should be considered in both circumstances.

4.18 The main themes in comments from those answering "yes" solely to option a) included:

• Resolving the issue as early as possible would avoid unnecessary stress;
• That this is best agreed at a pre-trial hearing;
• This gives greater certainty as to whether victims or witnesses will be required to give evidence in open court;
• That courts should decide on a case by case basis not on predetermined criteria;
• That a closed court should be automatically granted for certain circumstances involving children or other vulnerable witnesses unless the defence provide valid objections;
• That all possible measures should be taken not to deter witnesses from coming forward.

4.19 The main themes in comments from those answering "yes" solely at option b) included:

• Vulnerable people should be protected from the earliest possible stage;
• The process should be incorporated with other arrangements;
• Applications should have to meet set and appropriate criteria;
• Courts should be open unless victims or witnesses have good reasons to request this;
• This would reduce anxiety for those concerned.

4.20 The main themes from those consultees who did not choose just one option were as follows:

• Both measures are appropriate depending on the circumstances;
• Both options ensure the maximum flexibility for witnesses to request an arrangement that supports them;
• Closed courts should be considered when there is a probability of questioning of a victim's or witness's personal circumstances.