Investigation and prosecution of sheriff solemn cases: thematic review

Chapter 6 – Communication With Victims

Victim Information and Advice

137. The Victim Information and Advice (VIA) Service is the dedicated service offered by COPFS to victims, witnesses of certain crimes and bereaved relatives affected by certain types of deaths. The ethos of VIA is to increase victims, witnesses and bereaved relatives understanding of, and satisfaction with their experience of the criminal justice process.

VIA's Remit

138. The current categories of cases that are referred to VIA are set out at Annex B.

139. It includes victims in all serious cases, where the nature of the offence merits solemn proceedings unless the case is only to proceed on indictment because of the criminal record of the accused, as opposed to any feature of the victim. All witnesses with vulnerabilities are included.

First Appearance

140. Being advised of what happens in court following the arrest of an accused person is of paramount importance to the victim. If granted bail, receiving immediate notice of any conditions attached to the bail order designed to provide protection for the victim is critical.

141. VIA has a crucial role in passing on information to victims on the outcome of the accused's first appearance at court.

• VIA has a commitment to contact all victims, referred to them, to advise of any bail conditions on the day they are imposed in at least 90% of cases. If, for any reason, VIA is unable to contact the victim they should ask the police to make personal contact.^[39] This should be followed up within three working days with a letter confirming the information
• For those granted standard bail or remanded, VIA should advise the victim, if possible, on the day or by letter or email not later than the next working day
• In all domestic abuse cases victims should be advised of all decisions made by the court, including where an accused has been released, remanded or sentenced on the same day. If, for any reason, VIA is unable to contact the victim they should ask the police to make personal contact.^[40]

What we found

142. We examined the 91 cases to assess the quality and timeliness of communication with victims and witnesses. 23 did not fall within the VIA remit.^[41]

143. Of the remaining 68 we found:

• VIA made contact with the victim, in accordance with the guidance, following the accused appearing in court and sent a letter advising what happened, including notification of any bail conditions, in 48 (71%) cases
• In 19 (29%) there was no record that the victims had been advised of the outcome of the accused's initial appearance including any bail conditions or of any change in the accused's status within target timescales
• In one the victim was advised erroneously that the accused had been remanded in custody when he was released on bail with special conditions.

144. For many victims, who have taken the decision to report a person to the police, this is a time of extreme anxiety and the failure to advise those victims of the outcome within the specified time scales is disappointing and fell below the standard of what was expected.

Standard of Communication

145. Of the 68 cases:

146. Other than the omission to provide information following the accused's appearance at court,^[42] communication in 12 of the 20 cases above was otherwise satisfactory.

147. There were, however, additional issues in eight cases including failing to provide updates on progress at key stages of the case or not providing them timeously; special measures that had not been obtained or the possibility had not been explored and/or the content of letters were either confusing or omitted key information.

148. In a further four cases we assessed that the communication did not take account of the individual needs of the victim/witness and/or fell below the expected standard:

• One involved a serious assault and robbery where four accused were initially remanded in custody. The victim phoned the day before the full committal hearing anxious to ascertain whether any of the accused would be released on bail. At that time he advised that he was suffering from Post-Traumatic Stress Disorder (PTSD) and agoraphobic issues. VIA advised him to contact his GP but did not explore whether any other support or special measures could be put in place. Further, when one of the accused was released on bail the victim was only informed through a standard letter
• In one involving multiple charges of domestic abuse, while special measures were obtained for the victim, she was clearly anxious, repeatedly phoning for updates. A more pro-active approach with more regular contact may have provided the victim with more reassurance. She also advised that her daughter, who was a witness, was terrified about giving evidence and the police report had highlighted that her daughter had a number of vulnerabilities. Despite having this information, VIA did not engage with the daughter or explore whether she would benefit from some additional support including special measures
• A case involving an offence of assault to severe injury, permanent disfigurement and impairment raised equality issues. The victim was a foreign national and although it was recorded on the VIA minute sheet that an interpreter would be required, letters sent to the victim were not translated
• In another involving an assault to severe injury no updates were provided at key stages of the case.

149. In 37 cases, communication was assessed as satisfactory with victims receiving timely information on outcomes at court, regular updates on all key stages of the proceedings and discussion on special measures where appropriate.

150. In seven cases, the communication was excellent. Efforts had been made to discuss the case with victim(s), or for those involving children with parents/foster parents to ensure they were kept informed and to secure the right support. In two cases involving domestic abuse VIA had referred the victims to ASSIST,^[43] one of which resulted in a bespoke tailored approach being taken to the manner of communication by ASSIST taking account of the victim's vulnerabilities.

Case Studies

In one case VIA took the time to route all communication through ASSIST for an extremely vulnerable victim of historic domestic abuse who had learning difficulties. This increased the understanding of the victim and enabled a suite of appropriate support measures to be obtained.

In a case involving two child victims of sexual crimes with different vulnerabilities, a detailed discussion took place with the parent/foster parent on their respective support needs and the special measures required. The family expressed their gratitude to the VIA Officer.

Key Finding

The standard of communication, for victims within the VIA remit, fell below what should be expected for 35% of victims.

Victim Strategy

151. For all victims of sexual crimes prosecuted in the High Court, COPFS has implemented a victim strategy which is dependent on receiving vulnerability reports from the police.

152. In addition to commitments to advise all victims of the outcome of the accused's first appearance and bail conditions there is a commitment that VIA will make contact by telephone within 7/21 days for custody/bail cases where the accused has appeared in court. The call should include:

• introducing VIA and the case preparer to the victim and explaining the process and likely timescales;
• ascertaining the victim's preferred method of communication and whether they would wish an early face to face meeting with the case preparer;
• an assessment of vulnerabilities and special measures;
• discussing the victim's attitude to proceedings and to obtaining sensitive, personal records;
• signposting the victim to support organisations, if appropriate;
• updating the victim following any 'significant event', such as when an indictment has been served on the accused; and
• contacting the victim in accordance with the level and type of communication that has been agreed.

153. Currently this strategy does not extend to victims in sheriff solemn cases resulting in a different approach being taken to the service provided to victims of serious sexual crimes that is dependent on the forum of the prosecution. In many cases, the decision to prosecute in the High Court rather than the Sheriff Court is often marginal and can be due to an accused's record of previous offending rather than the seriousness of the offence.

What we heard

154. VIA officers expressed a desire to provide a consistent level of service to all victims of serious sexual crimes regardless of the forum. Senior members of COPFS shared this view. An approach similar to that taken in the High Court is currently being employed in Kirkcaldy and a pilot scheme is underway in Glasgow where victims of sexual crimes prosecuted in the sheriff solemn courts will be supported in the same way as those in the High Court. We welcome both developments and urge COPFS to extend the victim strategy to all victims of sexual crimes prosecuted in the solemn courts.

Recommendation 6

COPFS should extend the victim strategy to all victims of sexual crimes prosecuted in the sheriff solemn courts.

Identifying Vulnerabilities and obtaining Appropriate Special Measures

155. Empowering victims to give their best evidence undoubtedly impacts on the overall quality of the case presented by the prosecution.

Victims and Witnesses (Scotland) Act 2014

156. The 2014 Act represents a major landmark for victims and witnesses' rights.

157. The Act re-defines the categories of person that are to be regarded as vulnerable witnesses to include:^[44]

• Children under the age of 18 at the date of the commencement of the proceedings (previously 16);
• Victims of alleged sexual offences, human trafficking, an offence the commission of which involves domestic abuse or stalking who are giving evidence in proceedings which relate to that particular offence;
• Adult witnesses whose quality of evidence is at significant risk of being diminished either as a result of a mental disorder, or due to fear or distress in connection with giving evidence; and
• Witnesses who are considered by the court to be at significant risk of harm by reason of them giving evidence.

Special Measures

158. Victims and witnesses that fall within the first two categories above are automatically entitled to the use of standard special measures when giving evidence. These are:

• use of a live television link;
• a screen to avoid seeing the accused; and
• a supporter.

159. Other special measures may be allowed if the court is satisfied that they are justified. These are:

• giving evidence via a commissioner;^[45]and
• giving evidence by means of a prior statement.
• excluding the public while giving evidence.

160. Identifying appropriate measures for victims is a key VIA responsibility. Where non-standard special measures are being sought for those entitled to automatic measures the prosecutor must include information, including a summary of the views of the witness or, where the witness is a child, from the parent of the child (except where the parent is the accused), in a written application/notice to the court.

161. Similarly, for those not automatically entitled to special measures any applications/notices made by the prosecutor require to provide detailed information on why they are necessary.

Vulnerabilities of Victims

What we found

162. Of the 91 cases, there were 26 involving a total of 44 witnesses who had some or multiple vulnerabilities.^[46]

163. Those automatically entitled to special measures were as follows:

Children

There were 12 cases involving 23 child victims or witnesses. Four involved sexual offences, one of which also involved stalking.

One case involving two child witnesses was resolved by a Section 76 plea.

For the remaining 21 victims or witnesses the following special measures were obtained:

• 12 – supporter only
• Five – TV link and a supporter, two of which prior statements to be used in evidence
• Three – screens and supporter
• One – Evidence on Commission, supporter and use of prior statement

Sexual Offences

There were three cases involvingvictims deemed vulnerable because the offences were of a sexual nature.

Screens and a supporter were obtained for the victims in all three cases.

Domestic Abuse and Stalking Offences

There were ten cases involving 13 victims who were deemed vulnerable because the offences involved domestic abuse or stalking. The following special measures were obtained:

• 10 – screens and supporter
• Two – TV link and supporter
• One – screens

Other Vulnerabilities

Of the above cases there were seven involving eight witnesses who also had other vulnerabilities:

• Five had mental health problems;
• One had foetal alcohol syndrome and learning difficulties;
• One had a speech impairment and memory problems;
• One had global development delay.

164. We found good examples of VIA tailoring special measures to the individual needs of the victim/witness.

In one case involving a particularly vulnerable victim of domestic abuse offences initial plans to apply for screens and supporter were revised given the anxieties expressed by the victim and replaced with a TV link at a remote site with a supporter.

In another case a vulnerable witness notice (VWN) for screens and supporter was amended following representations from Scottish Women's Aid regarding the vulnerabilities of the victim and a TV link and supporter were obtained.

In three cases involving four witnesses, vulnerable witness notices for special measures were submitted on the basis that there was a significant risk that the quality of evidence would be diminished by reason of fear or distress in connection with witness (es) giving evidence at the trial. In all three cases the individual requirements of each witness was considered and appropriate measures were sought.

165. In some cases, for evidential reasons, the victim or witness requires to identify the accused in court and it is, therefore, not possible to seek special measures. This was unfortunately the case for one witness where information was provided that they were vulnerable.

166. We found, however, other cases where witnesses may have benefitted from special measures but they were not explored.

In a case involving an offence of assault to severe injury and danger to life the police report highlighted that: the co-accused were well known within the local community for violence; there had been attempts made to intimidate the victim's family; and the victim was terrified of future reprisals. Despite this no effort was made to identify whether any special measures could assist or whether any other support would help them give evidence.

In one involving racially aggravated offences, assault and possession of a knife, two victims attended the Procurator Fiscal's office and advised a member of VIA staff that they did not want to come to court as they were fearful that they would be recognised by the accused. No effort was made to explore the possibility of obtaining special measures – they were simply advised that special measures were not applicable.

In a case involving an offence of assault and robbery with three accused the victim phoned prior to the trial advising that he was fearful of repercussions. Although VIA discussed arrangements to meet him at the side door of the court there was no exploration of whether special measures could be made available. Ultimately a plea of not guilty was accepted as the victim would not engage in the trial proceedings.

167. Where victims/witnesses were automatically entitled to special measures these were routinely obtained. Where, however, there was the possibility of victims/witnesses being vulnerable due to fear or distress or they were at risk of significant harm an inconsistent approach was taken to exploring whether special measures were necessary or appropriate and at times little was done to support these witnesses.

Key Findings

Standard special measures were obtained in 100% of cases for victims/witnesses who were automatically entitled to such measures.

There was an inconsistent approach taken to exploring whether special measures were necessary or appropriate for victims/witnesses who were not automatically entitled to standard special measures but have other vulnerabilities.

Taking Evidence by a Commissioner

168. Despite being available since the late 1990s, taking evidence by a commissioner^[47] was rarely used until a High Court Practice Note, providing guidance on how to take such evidence and requiring the defence and prosecution to give early consideration to whether a witness is vulnerable and a commission was necessary, was issued in 2017.^[48]

169. COPFS subsequently revised their guidance^[49] providing a presumption in favour of taking evidence by a commissioner for all victims under 18 and to consider it as an option for other witnesses who may benefit from giving evidence in this way in cases proceeding in the High Court. It further stipulated that while the practice note did not apply to the sheriff court, it does represent best practice and could be followed when making child and vulnerable witness applications.

What we found

170. Of the 73 cases:^[50]

171. There was only one case, where an application for taking evidence by commissioner was made by the prosecutor. It involved a child victim under the age of 12 years and a sexual offence. The commission hearing is yet to take place.

172. There were two other cases where taking evidence by commissioner was considered.

• One involved an offence of assault and robbery of two adult victims who had various vulnerabilities including learning difficulties. Proceedings were initially instructed for the High Court and Crown Counsel instructed psychological reports for the two victims and consideration to be given to taking evidence by commissioner. However, following the death of the co-accused, the case was reviewed and taking account of the less serious criminal record of the remaining accused, it was decided to proceed in the sheriff solemn court. Screens and a supporter were obtained for both victims.

As the forum is irrelevant to the ability of witnesses to give evidence, it is disappointing that taking evidence by commissioner was not explored following the change of forum.

• The other involved an offence of assault to severe injury, permanent disfigurement and robbery where the two child witnesses were aged 12 when the case was reported to Crown Office and 13 at the time of indicting. On instructing proceedings before a sheriff and jury Crown Counsel specified that the evidence of the children should be taken by commissioner. However, despite repeated attempts, VIA were unable to contact the parents of the children to seek their views. In absence of this information, VIA prepared an application seeking a TV link and a supporter for the children. Following a plea of guilty to an amended charge, the children were not required to give evidence.

173. We identified two other cases involving sexual offences and victims under the age of 18 where taking evidence by commissioner may have been considered.

• In one case involving a victim with vulnerabilities who was 14 at the time of report and 15 at the time of indicting, there was excellent communication with the victim's foster mother throughout the case but taking evidence by commissioner does not appear to have been considered. Standard measures of a TV link and supporter were obtained. Following a plea of guilty to an amended charge the victim did not have to give evidence.

• The other involved two victims, aged 13 and 14 respectively at the time of report and 14 and 15 when the indictment was served. Both had vulnerabilities and one had a development disability. While there was excellent communication with the mother and foster carer of the victims, there was no discussion of taking evidence by commissioner.

174. For children and young people aged under 18, the forum where they give evidence is irrelevant. The trauma of the experience is not diminished by giving evidence in the Sheriff Court as opposed to the High Court.

175. The main policy objective of the Vulnerable Witnesses (Criminal Evidence) Scotland Bill, introduced in the Scottish Parliament in June 2018, is to improve how children and vulnerable witness participate in the criminal justice system by enabling greater use of pre-recording their evidence in advance of a trial. It proposes, subject to certain exceptions, that all victims and witnesses under the age of 18 should, in the most serious cases, have their evidence pre-recorded usually by the special measure of evidence by commissioner. It will apply to all cases prosecuted under solemn procedure. In anticipation for the enactment of the Bill, COPFS should revise its approach and introduce a consistent approach on the use of taking evidence by commissioner for all those under 18 in solemn proceedings.

Recommendation 7

COPFS should apply a consistent approach to taking evidence by a commissioner for cases prosecuted in the High Court and sheriff solemn courts for all witnesses under 18.