Making Justice Work for Victims and Witnesses

6 Feeling Safe

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

6.1 The consultation paper noted that the draft EU Directive envisages that all interviews with victims of sexual violence, unless conducted by a public prosecutor or judge, are conducted by a person of the sex chosen by the victim if they so wish and it would not be prejudicial to the proceedings. The Scottish Government propose to enshrine the right of victims of sexual violence to choose the gender of the interviewer.

6.2 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 invited further comments.

6.3 Forty-seven consultees agreed that victims of sexual violence should have the right to choose the gender of the person who interviews them and five consultees answered "no".

6.4 The comments of those who answered "no" highlighted some concern about resource issues and the practicality of delivering such a choice. A legal organisation, a police organisation and a local authority included comments highlighting the practical difficulties in accessing, for example, appropriately trained female personnel at short notice. Another police organisation commented that this might result in evidence not being secured by a more skilled interviewer.

6.5 An individual and a local authority also commented that delays in conducting interviews in order to access an interviewer of the preferred gender may impact negatively on investigations or even increase risk to the public by allowing a suspect time to escape.

6.6 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, five consultees commented on resource challenges and observed that there might be difficulty in implementing this on all occasions.

6.7 Around one in five of those who agreed with the proposal commented that this would ensure comfort with the interview process and six consultees commented that it might help secure better evidence or, conversely, that not doing so might jeopardise evidence.

6.8 Three consultees commented that gender should not be a barrier to giving evidence and other comments from single consultees included:

• This is in line with other EU jurisdictions;
• This would balance the rights of victims with the rights of the accused;
• This does not compromise fairness to the accused;
• The approach mirrors those in other services.

6.9 Three consultees, all voluntary sector organisations, suggested extending the proposal to other victims; one mentioned extending this to cover children, one suggested covering victims of domestic abuse and one wanted this extended to all victims regardless of the crime.

6.10 Three consultees, all voluntary sector organisations, suggested that the choice for victims should extend to cover medical examiners as well as interviewers.

6.11 One consultee commented that it would be helpful to define which interviews are covered by the proposal and another noted that the definition of interviewer should not include a Reporter of proof proceedings.

Disclosure of personal details

6.12 The consultation paper noted that concerns have been expressed about the extent to which a witness' personal circumstances require to be disclosed in a Child Witness Notice or a Vulnerable Witness Application. The Scottish Government is proposing that it should not be necessary to disclose the witness' personal circumstances in an application for standard special measures.

6.13 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 invited further comments.

6.14 Forty-three consultees agreed 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. Five consultees answered "no" and one answered both "yes" and no".

6.15 The comments of those who answered "no" focused on ensuring measures are not abused and predominantly that judges require sufficient information to make their decisions. As one consultee, an individual, commented "to be granted this you would need to know why it should be granted". A legal organisation observed,

"Although no irrelevant information should be contained in an application, there must be sufficient detail for the defence to consider its position (it may agree to the application). More importantly, the Judge needs sufficient information to make a reasoned decision, not only as to whether a vulnerability exists, but also as to which measures are most appropriate."

6.16 The consultee answering both "yes" and no" commented:

"I believe that some personal circumstances would require to be disclosed to allow the sheriff/judge to instruct the defence/pf to re phrase questions etc. I'm unsure about the need to disclose all personal information, though can see both sides of the argument." (local authority)

6.17 The key theme emerging from the comments of those who answered "yes" was that there is no need for this to be public information (sixteen mentions). Six consultees commented that only enough information should be given to clarify the reason for an application and another four consultees believed that an assessment of vulnerability should be sufficient or that only the person making the referral needs the information.

6.18 Six consultees commented in general terms that this would limit anxiety or distress for witnesses and seven consultees specifically commented that this would protect witnesses from unfair use of information or attacks on their character.

6.19 Three consultees, two voluntary organisations and one local authority, commented that personal information should not be disclosed without the specific consent of the witness. Another individual consultee suggested that confidentiality contracts should be agreed.

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

• The need to disclose could present a barrier to accessing special measures;
• There should be equality/ fairness to witnesses as well as the accused;
• Victims of serious crime should have automatic rights to special measures;
• Statements of general support for the proposal.

Advising victims about offender temporary release

6.21 Section 16 of the Criminal Justice (Scotland) Act 2003 gives victims or parents, carers or relatives the right to receive certain information about the person convicted of the offence against them or their family member. This applies in instances where an offender is given a custodial sentence of 18 months or more. The scheme under which this information is provided is called the Victim Notification Scheme (VNS).

6.22 The EU Directive on Victims includes a right for a victim to be informed, if they so wish, if someone remanded, prosecuted or sentenced has been released or escaped detention in cases where there might be a danger or identified risk of harm to the victim unless there is a risk of harm to the offender which would result from the notification. Currently, victims or their representative are notified by the Scottish Prison Service (SPS) when a prisoner first becomes eligible for temporary release but they do not have the right to make representations about what conditions should be attached to a temporary release licence.

6.23 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?' and invited consultees to comment on any concerns they had or any implications they thought the proposal had.

6.24 A total of fifty-five consultees responded to this question, with the majority (46) in agreement with the proposal. Only five consultees answered 'no' and a further four provided commentary only.

6.25 A key theme emerging, from 19 consultees, 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. Those noting this were from a range of sub-groups; local authorities (6), police organisations (4), voluntary sector organisations (4), a public body, a legal organisation and 3 individuals. Other comments made in relation to representation from victims were that:

• These need to be considered to help prevent upset, abuse or intimidation of a victim (a police organisation and 2 local authorities);
• Concerns over the geographic location of the victim or the setting of areas that the offender cannot enter (voluntary organisations and an individual);
• Another 3 consultees referred specifically to cases of domestic abuse (all voluntary sector organisations); and an individual commented that there is a need to consider the victim's safety and protection prior to release of an offender;
• It may be helpful to take these into account (a local authority and an individual);
• Victims and their families should have the opportunity to suggest conditions but only in relation to their protection (local authority).

6.26 One organisation noted 'This is potentially major shift in practice. It may create unrealistic expectations for victims and also open up a potentially unhelpful and punitive connection between victim and perpetrator. It would be helpful to put in place mechanisms that improve victims' ability to get and understand information about release dates and license conditions. It may be helpful as well as for victims to be consulted/advised about licence conditions as they are drafted. This could include being given an opportunity to describe concerns about a person on licence with a duty for authorities to consider whether there is good reason to act on them'.

6.27 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 (mentioned by 13 consultees; 4 police organisations, 3 local authorities, 2 voluntary sector organisations, a public body and 3 individuals).

6.28 Three local authorities and one police organisation also noted that additional conditions of licences are decided upon by the relevant agencies or that the victim's family should not have a role in imposing licence conditions. Three local authorities and a public body also commented that there is a need to keep a fine balance between punishment, public safety and rehabilitation. A police organisation also felt that offender's rights need to be taken into account. A voluntary sector organisation noted that there should be the potential to consider the views of others on whom the offence will have had indirect impact; and an individual noted that information needs to be gathered from various sources within the criminal justice system. Another voluntary organisation noted that they agreed in principle with the proposal, providing there are clear criteria for assessing the merits of proposed licence conditions; these should be preventative rather than punitive and proportionate, reasonable and necessary.

6.29 A voluntary sector organisation and an individual noted that victims should be given the opportunity to make representations about what conditions to include in the licence.

6.30 The issue of support to victims was raised by a number of consultees; with four individuals noting that victims may need support or guidance for written representations. A local authority and a voluntary sector organisation also suggested that there should be an opportunity to make representation through an intermediary.

6.31 Other issues raised in response to this question included:

• There should be feedback to victims from the SPS (3 voluntary organisations);
• The victim needs to feel comfortable that the offender is ready for release;
• Questions over how this, in practice, would work; for example, who would be responsible for evaluation of the victim's written representation; what happens if a victim puts forward unrealistic or unworkable conditions?;
• This may place additional anxiety on the victim;
• An updated victims statement should be available to the Parole Board or SPS;
• Requests need to be fair and assessed on a case-by-case basis;
• If there is a high level of participation in the scheme, it may be more appropriate to make this opt-out rather than opt-in, as at present;
• VNS should be an automatic opt in scheme;
• The victim / family should be able to provide information on a confidential basis;
• Courts should consider the original impact statement at all times;
• Victims should receive the same levels of support as an offender;
• The perpetrator needs to understand the impact of their crime;
• Concerns over logistics such as training of staff;
• A query over whether the court would accept representation in British Sign Language if this is the victim's first language.

Investigative anonymity orders

6.32 Section 90 of the Criminal Justice and Licensing (Scotland) Act 2010 introduced Witness Anonymity Orders (WAOs). These allow courts, where there is a serious threat to witness' safety or property or where it would be undesirable for the identity of a witness to be disclosed, to grant an order preserving the anonymity of a witness when giving evidence. Investigative Anonymity Orders would offer earlier protection in similar circumstances to those who would subsequently be considered for a WAO. The Scottish Crime and Drug Enforcement Agency have suggested these would be helpful in cases they deal with. Question 31 asked 'Should we seek to introduce Investigative Anonymity Orders in Scotland?' and asked consultees to comment on the reasons for their answer.

6.33 Thirty-five consultees responded to this question, and the majority (27) agreed with the proposal to introduce IAOs. Only 5 disagreed with the proposal and a further 3 consultees provided comment but no definitive agreement or disagreement.

6.34 Of those agreeing with the proposal to introduce IAOs in Scotland, 8 (3 police organisations, a voluntary sector organisation, a legal organisation and 3 individuals) noted that this would help witnesses to speak out; and 4 (2 police organisations, a local authority and an individual) that this allows courts to protect witnesses from intimidation or harm.

6.35 Two police organisations also noted that this would help to protect witnesses from media intrusion; a local authority that this would allow early protection from those likely to ultimately be protected by WAOs; and an individual simply noted that this would be important as it will allow justice to be done.

6.36 Two organisations (a police organisation and a local authority) noted that this would be good for cross border work.

6.37 There were some references to specific types of crime that could be covered by an IAO, with 3 organisations (2 police and one voluntary sector) citing that this would be of most benefit in cases involving serious and organised crime groups; and 2 local authorities that this should be used for cases of serious gender based sexual or violent offences.

6.38 While there was majority support, 5 of the consultees who agreed with this proposal, also provided some qualification to their response:

• An IAO should only be used if there is serious threat to witness safety (2 local authorities);
• Grounds should be the same as for WAOs (local authority and an individual);
• This should be subject to the same limits as in England and Wales (police organisation);
• This should be decided by a sheriff (local authority);
• This needs to be controlled carefully (individual);
• This should only be used when there are important criteria to be met (individual).

6.39 A legal organisation asked whether when an application is made, if the defence will be provided with the right to make representations and also queried why the current procedure is not considered suitable.

6.40 One local authority noted their support for this but also requested further detail on the nature of the Orders and a public body noted their agreement with SCDEA on this issue.

6.41 Of those disagreeing with the proposal, 2 consultees (a legal organisation and an individual) felt there was no demand for this or that it was not needed in Scotland; a legal organisation wanted to see how this operates in England and Wales and a voluntary sector body simply noted that they agreed with comments made by the UK Parliament's Human Rights Committee. An individual commented that justice should remain transparent.

6.42 Of the 3 consultees not providing a definitive response to this question, a voluntary sector organisation requested more information, a police organisation noted their support for the SCDEA view and a public body felt this would lead to an increase in court / judicial time.

6.43 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. Most of the responses listed specific types of crimes for which it was felt an IAO should be used, although there were also some general comments from a small number of consultees.

6.44 Five consultees felt that an IAO should be used where there is a credible reason to believe that an individual or family member may be at risk of harm or intimidation in serious cases (2 local authorities, a legal organisation, a police organisation and an individual). Another individual noted that this should be used where there is suspicion or evidence of potential harassment.

6.45 A police organisation and a local authority felt that these should be used in the same way as in England and Wales; and a voluntary organisation asked for more discussion and information on IAOs.

6.46 A public body and an individual commented that the grounds for using an IAO must be the same as for a WAO; and 2 individuals noted that using an IAO may help encourage witnesses to come forward.

6.47 Consultees noted a wide range of crimes for which an IAO might be suitable and these were as follows:

• Serious and organised crime (10 consultees: 3 police organisations, 3 local authorities, a public body, a voluntary sector organisation and 2 individuals);
• Serious sexual offences (7 consultees: 3 local authorities, 2 police organisations and 2 individuals);
• Murders/ homicides (5 consultees: 2 police organisations, one local authority, a voluntary sector organisation and an individual);
• Drug related crime (4 consultees: a police organisation, a local authority and 2 individuals);
• Serious violent offences (4 consultees: 3 local authorities and a police organisation);
• Predatory crimes / stalking (4 consultees: 2 local authorities and 2 individuals);
• Drugs (4 consultees: a police organisation, a local authority and 2 individuals);
• High profile crimes such as murders / rapes with extensive media coverage (3 consultees: 2 police organisations and a voluntary sector organisation);
• Child abuse (2 consultees: a police organisation and an individual);
• Gang related offences (2 consultees: a local authority and an individual).

6.48 Other crimes where it was felt an IAO would be appropriate, and which were mentioned by only one consultee were forced marriage, hate crimes, causing death by driving, firearms, conspiracy, fraud, corruption, money laundering, businesses, instances where there is fear of retaliation or reprisal or where national security is at issue. An individual noted they were not supportive if there is a threat to property unless the threat risks the life of others.