Making Justice Work for Victims and Witnesses

5 Feeling supported

Improving victim and witness care and support

5.1 The consultation paper explained that there is an opportunity to look at how services are provided to support victims and witnesses and outlined a number of ideas already proposed and which might be tested locally. These suggestions included:

• A dedicated contact point - appoint a single professional to advise and update the victim or witness throughout the criminal justice process (pre, during and post). This could help deliver information tailored to individual needs.
• A co-ordination/liaison/care unit - a multi-justice organisation team which would take responsibility for dealing with victim and witness contact, information and organisation of support measures (legislative or otherwise). This could help deliver more effective information-sharing between organisations and a more stream-lined service for individual victims and witnesses.
• A support programme for child victims/witnesses - make available, as a matter of course, a support programme which focuses on preparing a child for court in a way that ensures they are able to give their best evidence but does not prejudice the right of the accused to a fair trial. The programme would focus on building a child's resilience and could have a therapeutic element to help them move on from and beyond the justice process. This could help improve participation in the justice process and individual recovery.
• A central hub - to support professionals with awareness, training and preparation for dealing with child and other vulnerable witnesses and their families. This could also be developed to act as an information and contact point for vulnerable witnesses and their families at various stages of the judicial process. This could help improve engagement with and support of victims, witnesses and families.

5.2 Question 12 said "Please let us have your views on the possible options for piloting improved care and support for victims and witnesses" and the subsequent question invited suggestions for other models of care and support. Fifty-four consultees made comments at question 12 and 29 consultees made comments at question 13.

5.3 The key theme arising from comments at question 12 was an expression of general support for all possible measures outlined and enthusiasm for the pilots going forward.

5.4 Almost one in two consultees making comments specifically praised the idea of a dedicated contact point. A small number of these consultees noted the importance of arrangements to deal with situations where there are staff changes that might impact on continuity.

5.5 Large proportions specifically praised the idea of a co-ordination/liaison/care unit as did large proportions support the proposal of a support programme for child victims/witnesses. The proposal for a central hub was also widely mentioned although it was singled out by slightly fewer consultees.

5.6 A second common theme, from some individuals as well as organisations, was the offer of advice and assistance going forward, particularly with regards to piloting of these proposals. Further, one consultee commented that past victims should be consulted or included in the piloting process.

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

• Support for any and all measures to improve care and support to victims and witnesses;
• Comment that provision of appropriate care and support can influence the quality of evidence provided by victims and witnesses and also increase numbers coming to court;
• Positive comment on the idea of a Victims' Commissioner;
• The suggestion of a Victim Advisory Council;
• Some concerns about the resource implications for any or all of the options outlined;
• The suggestion that group support, treatments, online forums and counselling should be available;
• The suggestion of a "legal advice clinic" for victims and witnesses to deal with questions relating to compensation and general advice about their rights;
• The suggestion of educational and community work;
• A suggestion for bespoke support in specific circumstances e.g. families involved in fatal accident inquiries;
• A suggestion for funding of a respite or retreat centre in the run up to and following trials;
• A suggestion for a multi-agency team, with involvement from a third sector organisation, to deliver care and support;
• A suggestion for a nominated contact to support the victim or witness throughout the process, along the lines of the dedicated contact point outlined;
• A suggestion for therapeutic support, along similar lines to that outlined in the consultation;
• A suggestion for a Liaison Unit for large, busy courts.

5.8 A wide variety of alternative models for improving care and support were each suggested by one or two consultees at question 13. The most common theme, albeit from only three consultees (two individuals and a voluntary organisation, was that the Scottish Government should consider evidence regarding the impact of Independent Legal Representation for victims.

5.9 Other suggestions from single consultees or small numbers of consultees included:

• A health service "key worker" working across agencies;
• A website similar to SAMM but for Scotland;
• The Victim Support (England and Wales) model of dedicated "homicide case worker";
• A model similar to Children's Panels;
• Something similar to the West Lothian Domestic and Sexual Assault Team model and service;
• A Charter of Victims' rights;
• A Victims' fund;
• A Victim Implementation Committee;
• A roll out of specialist courts across the whole of Scotland;
• A more pro-active witness service at Courts;
• Peer support;
• A community orientated approach;
• Witness Support Units as used in England;
• An audit of correspondence to victims and witnesses to check for plain English and improve standards and test of the value of Inclusive Communication best practice in support services;
• An effective co-ordination unit (a suggested model was provided by the consultee);
• Better provision for separating victims/witnesses from accused in court buildings;
• Consideration of financial support to Local Authorities for services provided to V&W;
• The "No Witness No Justice" programme used in England and Wales;
• The model used by the Multi Agency Tasking and Coordinating group in Strathclyde;
• The Pilot model in Tayside where Victim Support Scotland provide services on behalf of VIA;
• A bespoke allocated independent advocacy service for victims and witnesses;
• A Restorative Justice Approach;
• Funding and support of specific helplines;
• A referral to research findings at www.scotland.gov.uk/Topics/Justice/crimes/youth-justice/confidence/young-victims-report
• The example cited in the Hidden in Plain Sight Report (p156, Equality and Human Rights Commission, 2011) of The National Centre for Victims of Crime in America.

Definition and identification of vulnerability

5.10 The consultation stated that the Scottish Government intends to make provision so that the definition of a child witness will be changed to someone up to the age of 18 for the purposes of eligibility for automatic entitlement to standard special measures.

5.11 At question 14 of the consultation, consultees were asked "do you agree with the proposal to change the definition of child witness to be up to age 18." Those saying they disagreed were invited to comment on their reasons.

5.12 Forty-seven consultees agreed with the proposal to change the definition of child witness to be up to age 18. Only three 3 consultees answered "no" and went on to give comments. One observed it does not fit with other legislation, another specifically commented that it is different to the Adult Support and Protection (Scotland) Act 2007 which defines an adult as anyone over 16 and the third explained that their objection was semantically based since traditionally in Scotland you are considered to be an adult at the age of 16. Some consultees who answered "yes" they agreed with the proposal also commented that the age of 18 would be anomalous.

5.13 One consultee, a legal organisation, commented that whilst agreeing with the proposal they suggest that any accused person aged 18 and below should also be classified as a child for specific purposes.

5.14 At question 15, consultees were asked "do you agree that we should amend the definition of vulnerable witness to match the requirements of the EU Directive on Victims?" Those saying "no" were invited to give comments.

5.15 Forty-nine consultees agreed that the definition of vulnerable witnesses should be amended to match the requirements of the EU directive on victims.

5.16 Only 5 consultees answered "no" and further comments from those disagreeing included:

• That Scotland should have its own definition that would constitute a minimum standard;
• That the definition is too prescriptive and too narrow;
• That it would be preferable to remove the Vulnerable Witness Act and widen access to standard measures to cover all witnesses.

Rights-based entitlement to special measures

5.17 The consultation stated that the Scottish Government 'propose to extend an automatic right to standard special measures to:

• victims of sexual offences;
• victims of domestic abuse;
• any other category defined as automatically vulnerable in the final version of the EU Directive on Victims'.

5.18 At question 16 of the consultation, consultees were asked whether they agreed the definition of a vulnerable witness - and therefore automatic entitlement to standard special measures - should be extended to include: (a) victims of sexual offences, (b) victims of domestic abuse and (c) those witnesses defined as automatically vulnerable in the final version of the EU Directive on Victims. They were then invited to comment on the reasons for their answers.

5.19 Fifty one consultees agreed that the definition of a vulnerable witness - and therefore automatic entitlement to standard special measures - should be extended to include victims of sexual offences. Only two consultees disagreed.

5.20 Fifty one consultees agreed that the definition of a vulnerable witness - and therefore automatic entitlement to standard special measures - should be extended to include victims of domestic abuse. Only 2 disagreed.

5.21 Fifty-two consultees agreed that the definition of a vulnerable witness - and therefore automatic entitlement to standard special measures - should be extended to include those witnesses defined as automatically vulnerable in the final version of the EU Directive on victims. Only 2 disagreed.

5.22 The one consultee who disagreed with all three proposed extensions did not wish to see a hierarchy of victims and preferred to see removal of the Vulnerable Witness Act and widening access to standard measures to cover all witnesses.

5.23 A consultee who disagreed with extensions to include victims of sexual offences and victims of domestic abuse did not agree that automatic entitlement should be beyond that in the directive i.e. a child, preferring that for adult witnesses the vulnerability should relate to the individual concerned.

5.24 The consultee disagreeing with part c also felt that special measures over and above certain specified categories should be subject to a needs-based assessment.

5.25 Amongst the very large majority agreeing with each proposed extension, the predominant themes included in their responses were that automatic entitlement is preferable, that the specified categories need support and help and that these measures will help improve the quality of evidence given. Three consultees pre-empted the next question in the consultation, mentioning here that there should be a right to opt-out.

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

• This would afford the same protection as for others in the EU;
• An expression of agreement in principle;
• A suggestion that victims of forced marriage and honour crimes should also be included;
• Comment that this works elsewhere;
• A suggestion that the definition of vulnerability would benefit from inclusion of witnesses considered to have a 'significant impairment of intelligence and social functioning' ;
• Comment that "standard special measures" are aimed at making the court environment less intimidating and that further consideration should be given to other personal support needs;
• Comment that some offences contain an underlying element of sexual or domestic abuse that is not explicit in the charge and queries as to how these might be managed.

5.27 The consultation document explained that "under current legislation, children can opt-out of using the standard special measures to which they are entitled if they so wish and it is accepted by the court". It stated that the Scottish Government are keen to ensure that victims of sexual offences and domestic abuse can also opt-out in the same circumstances.

5.28 At question 17, consultees were specifically asked "do you agree that any witnesses who are automatically entitled to standard special measures should be able to opt-out of using them?" They were also invited to make further comments on their reasons.

5.29 Fifty-six consultees agreed that any witnesses who are automatically entitled to standard special measures should be able to opt-out of using them. Only one consultee answered "no", commenting that safeguards are there for a reason and should not be set aside without a very good reason. Another consultee answered "yes and no", believing the opt-out should not be automatic but there should be an option.

5.30 Fifty-three of the consultees who answered "yes" went on to make detailed comments and two significant themes were apparent and identified by a large majority:

• There should be as much choice as possible;
• This assumes the witness has the capacity to understand and is properly counselled to make an informed decision.

5.31 A number of consultees commented that some witnesses prefer to tackle things "head on" or that they need the process to bring closure.

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

• It seems fair to extend the opt-out option if it is already available to one group of witnesses;
• That opt-out should be seen as exceptional;
• That this assumes the court has no objections;
• That the opt-out is not under duress or coercion.

5.33 Finally in this section, consultees were asked "do you have any comments on the proposal to include in the legislation flexibility to extend the range of standard special measures if necessary in future"?

5.34 Thirty-seven consultees made comments and these comments were very predominantly of a generally supportive nature, welcoming a flexible approach and highlighting the benefits of being able to adapt to emerging issues as they develop.

5.35 More specific comments, each made by single consultees or very small numbers of consultees, included:

• The flexibility allows new opportunities linked to technology advances;
• This means future problems can be dealt with swiftly;
• A caveat from one consultee that they support this as long as it is not about reducing or cutting back special measures;
• An observation that the expansion of access to special measures should not result in a reduction in the quality of support;
• A comment emphasising the importance of courts receiving prior notification of requirements for special measures;
• An observation that there are likely to be increased costs linked to increased demand and use of special measures;
• A comment that victims of stalking should be considered;
• A small number consultees querying precisely what this proposal actually means;
• An observation that provision appears to be available in terms of section 271H of the 1995 Act;
• An observation that victim safety goes far beyond the court process and that convicted criminals should not be allowed to live with a suggested geographical distance of the person or persons against whom an offence has been committed.

Notification/ application arrangements

5.36 The consultation document acknowledged that widening the definition of vulnerability and a rights-based approach to special measures, and extending the range of special measures available for application have the potential to increase demand for them.

5.37 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".

5.38 Fourteen consultees had suggestions about how administrative arrangements for special measures might be streamlined for those witnesses automatically entitled to standard special measures, 14 had suggestions for other witnesses who may fall into the definition of vulnerable but do not automatically do so and twelve made suggestions 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.

5.39 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.

5.40 Other themes arising from one or more consultees included:

• These matters can be covered at Intermediate / First Diet to deal with any issues not covered by default provisions;
• Decisions should be taken soon after the crime as to whether a vulnerable witness will be granted special measures;
• If there is to be a dedicated service for support of victims and witnesses, this service could clarify what special measures are being sought;
• As soon as a person is identified as a vulnerable witness, support should be delivered through a specialist support team;
• If victims and witnesses are given an opportunity to decide how best to give evidence this could be built into procedures and given to COPFS to be discussed as standard at hearings;
• Whatever proposals are brought forward, consideration should be given as to whether and how they could be available for children's hearings; in addition, a comment that all special measures should be available to all child and young person victims and vulnerable witnesses;
• A suggestion of removing the terms 'standard special measures' and making all measures available as 'standard measures';
• A suggestion that for all categories, consideration should be given as to whether proposed witnesses should be represented at any or all hearings where their status is to be determined;
• An observation that the arrangements need to ensure adequate time for a proper assessment of victims' and witnesses' needs;
• A reiteration that the quality of support should not suffer;
• A suggestion that a quality standard "Communication Support Needs Profile" be introduced for those requiring special measures where communication competence is a cause of vulnerability;
• Comment on the need for additional training to police officers dealing with vulnerable witnesses;
• An observation that standard special measures should be discussed with all vulnerable victims entitled to receive those measures and that they should apply unless a victim expresses a strong desire to give evidence without the benefit of those measures.

Additional support for child witnesses

5.41 The consultation paper made reference to recent EU Directives that include provisions to ensure effective participation of child witnesses in proceedings and seek to ensure entitlement to giving evidence using appropriate communication technologies. It also noted that equipment to visually record joint investigative interviews with child witnesses in serious cases is currently being introduced in Scotland. Further, the paper noted that the Guidance on Joint Investigative Interviewing of Child Witnesses in Scotland makes clear that these interviews should be visually recorded unless there is a good reason why this is not appropriate.

5.42 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 (JII) of Child Witnesses in Scotland on a statutory footing?" Consultees answering "yes" were invited to provide further details of their concerns.

5.43 Thirty-five consultees answered "no" they did not have concerns and only 4 consultees said they had concerns and went on to give comments.

5.44 One consultee who answered "no" expressed concern that evidence obtained in a manner which does not comply with the prevailing guidance in relation to joint investigative interviews is likely to be flawed; the consultee questioned what benefit there would therefore be in placing this on a statutory footing.

5.45 A second consultee observed that that Guidance has been criticised in the Journal of the Family Law Association and commented that the matters raised in that article should be addressed before the Guidance is put on a statutory footing.

5.46 A third consultee expressed concerns about the consequences if, in a particular case, an interviewer did not have regard to the guidance. The consultee noted that since hearsay evidence is admissible in most proofs, the evidence of the JII frequently avoids the need for the child to give evidence. There is therefore a concern that this proposal should not cause difficulties for this principle if an interviewer did not have regard to the guidance.

5.47 The fourth consultee answering "no" noted that the guidance involves recording equipment and expressed concern regarding the resource implications on police/staffing and the compatibility, availability and reliability of technology within police stations and smaller courts. The consultee observed that under the current Guidance flexibility is retained in instances where there is an emergency situation and time and/or access to equipment would impact on the child and/or investigation.

5.48 Question 21 of the consultation asked '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?' Consultees were invited to make comment on the reasons for their answer.

5.49 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'.

5.50 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.

5.51 Other comments from single consultees or very small numbers of consultees who answered "yes" included:

• That this change would be in the interests of UK-wide consistency;
• That there should be statutory provision to create a legal framework that is flexible to different needs;
• That this would reduce stress for child witnesses;
• That child and parent witnesses sometimes have to attend different venues; one consultee noted that if adequate family support can be given at a remote location, or all the family can give evidence from this remote location, it might improve use of the facility.

5.52 A large proportion of those who answered "no" to question 21 went on to comment that the problem is not with the presumption but the way in which it is applied; 7 of the 18 consultees made this observation and it was suggested that an opt-out facility is needed.

5.53 Several consultees who answered "no" felt that children needed protection at all times and that protection is essential. Two consultees who answered "no" commented that there is no benefit to children giving evidence in court and one consultee felt that this would result in the erosion of good practice.

5.54 One consultee answering "no" and supporting retention of the presumption gave their reason as being the possibility that a child might be taken to a separate location from their parent and / or carer to give evidence; hence this argument is presented both in support and against any proposal to remove the presumption.

5.55 The consultation paper noted that some support organisations have suggested that the submission of Child Witness Notices should be a compulsory part of pre-trial hearings in order to avoid unnecessary last-minute applications and better ensure the needs and rights of child witnesses are built into the courts process.

5.56 Question 22 of the consultation asked "should the submission of Child Witness Notices be made a compulsory part of pre-trial hearings?" Consultees were invited to provide comments on the reasons for their answer.

5.57 Thirty-one consultees answered 'yes' the submission of Child Witness Notices should be made a compulsory part of pre-trial hearings and only 2 answered 'no'.

5.58 One consultee who answered "no" highlighted a resource issue if broadening the category of witnesses that may require special measures results in an increase in the number of these cases in the court; the other commented that in summary cases the Child Witness Notice needs to go in after the plea of not guilty at the pleading diet when the trial diet is set and noted that the fact that there is a child and the availability of special measures including a remote facility would need to be known prior to setting the trial diet and extra time.

5.59 Only twenty-five of the consultees who answered "yes" went on to make comments; the predominant theme from these consultees was that it would help avoid unnecessary delays and would be in the best interests of the child.

5.60 Other comments included:

• That this would remove unnecessary anxiety;
• This would help ensure that special measures are made available;
• This would ensure consistency;
• This would allow time for planning by prosecution and defence;
• This will ensure that protection is discussed with witnesses.

Visual recording of vulnerable witness' evidence

5.61 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?" Consultees were invited to comment further on the reasons for their answer.

5.62 Thirty three consultees answered "no" they had no concerns and only 5 answered "yes" they had 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.

5.63 Comments from the small number expressing concerns included:

• A need for further information as to who decides about recording;
• Potential resource and training implications;
• Concerns about disclosure arrangements for video recordings.

5.64 The main themes emerging in comments from those who did not have concerns were that this might improve the availability and quality of evidence and that the change is both logical and appropriate.

5.65 Several consultees also commented that anything that improves the experience of vulnerable witnesses is welcome and that this serves to give clarity and enshrine current practise in law.

5.66 Other comments from smaller numbers included:

• There are no concerns as long as court service has resources to respond;
• That there are no concerns as long as this is used and conducted properly;
• This encourages prosecutors to have more confidence in support to witnesses and effective outcomes;
• This fits with other proposals in the consultation.

5.67 Question 24 asked "Do you believe we need specific provision allowing for visual recording of supplementary evidence "and invited further comments. Thirty one consultees answered "yes" they believed we need specific provision allowing for visual recording of supplementary evidence and only three answered "no".

5.68 Those answering "no" commented that this seemed unnecessary in the 21st Century, that there should be no need for this provision if the proposal detailed at Question 23 was followed and that this should be implicit in original provision.

5.69 The main themes emerging from comments of those who believe there is a need for specific provision related to ensuring consistency of evidence and giving clarity within legislation. Several consultees commented that this ensures the same measures are available throughout the UK.

5.70 Other comments from single consultees or small numbers of consultees included:

• This is a logical and progressive step;
• This ensures transparency;
• This allows sifting of evidence at an early stage;
• This ensues all relevant evidence will be heard;
• That it is important that the option is available.

Improved support for communication needs

5.71 In the consultation paper the proposal was put forward "to extend the types of support measures available incrementally to include means of meeting communication support needs. We intend to do this in a way that allows Ministers to pilot a measure in a specific area and, if appropriate following monitoring and evaluation of the pilot, roll-out the measure out across Scotland."

5.72 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? Those answering "no" were invited to detail further comments.

5.73 Fifty consultees answered "yes", they agreed with the principle of extending the types of special measures available specifically to help meet communication support needs. Only one consultee answered "no", querying the definition of "communication difficulties".

5.74 Question 26 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". Those indicating other means were asked to specify details and consultees were invited to comment on the reasons for their choices.

5.75 Twenty-six consultees favoured intermediaries, sixteen favoured Witness profiles and eight suggested some other option. Comments from the eight who indicated alternative suggestions included extending the Appropriate Adults scheme, case studies involving role play to prepare witnesses and, most commonly, assessment of needs on an individual basis.

5.76 Key themes emerging from those favouring intermediaries included:

• Use of intermediaries has been tried and tested;
• Intermediaries can provide additional support;
• As long as intermediaries are properly trained they would be beneficial.

5.77 The key theme emerging from those favouring witness profiles was that one size does not fit all and that profiling in each case would allow appropriate, tailored help and support. Some consultees commented that this might include an intermediary.

5.78 Other general comments were made regarding the need to pilot both options and also the need the tailor provision on an individual basis.

5.79 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" they believe that if the role of Appropriate Adults in relation to suspects is defined in statute, the same is necessary for their role in relation to victims and witnesses. Only 2 consultees answered "no."

5.80 One consultee who answered "no" attributed this to it being unnecessary because any new agency set up will have provided sufficient contact and support throughout the process, and the second commented:

"There is a difference between the arrangements and role for support by an AA for a suspect or an accused person and that provided to a victim or complainer. The former will not be chosen by the vulnerable person, whereas the latter generally will be. The former should be carefully vetted as they fulfil an official, detached, public role and are acting for strangers. The latter are usually committed volunteers with much personal understanding and empathy of the witness experience and likely to develop a longer term support relationship with the witness."

5.81 The main themes emerging from comments of 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.

5.82 Three consultees mentioned that there are significant and potentially challenging resource implications if this is defined in statute and two others commented that it will increase use.

5.83 Other comments from single consultees included:

• That it will secure better evidence;
• That it is an appropriate development of the role;
• That there is evidence that the service is valued by victims.