Victims Taskforce papers: March 2021

Attendees and apologies

Attendees

• Cabinet Secretary for Justice, Humza Yousaf MSP (Co-Chair)
• Lord Advocate, James Wolffe QC (Co-Chair)
• Solicitor General, Alison Di Rollo QC
• Jennifer Bain, Scottish Criminal Bar Association (SCBA)
• Sandy Brindley, Rape Crisis Scotland (RCS)
• Linda Brown, Criminal Injuries Compensation Authority (CICA)
• Lynn Burns, Victims Voices
• Michael Chalmers, Director Children and Families, Scottish Government (SG)
• Stephen Coyle, Scottish Prison Service (SPS)
• Ann Fehilly, ASSIST
• Mike Findlay, Victim Support Scotland (VSS)
• Ann Galbraith, Action Against Stalking (AAS)
• Mary Glasgow, Children 1st
• David Harvie, Crown Agent, Crown Office and Procurator Fiscal Service (COPFS)
• Lorna Jack, Law Society of Scotland (LSoS)
• Kathryn Lindsay, Social Work Scotland (SWS)
• Jessica Macdonald, Scottish Courts and Tribunal Service (SCTS)
• DCI Sam McCluskey, Police Scotland (PS)
• Rose McConnachie, Community Justice Scotland (CJS)
• Eric McQueen, Scottish Courts and Tribunal Service (SCTS)
• Mark McSherry, Risk Management Authority (RMA)
• Pauline Proudfoot, Scottish Children’s Reporting Agency (SCRA)
• Marsha Scott, Scottish Women’s Aid (SWA)
• Kate Wallace, Victim Support Scotland (VSS)
• John Watt, Parole Board Scotland (PBS)
• Amy Wilson, Head of Justice Analytical Services (JAS), Scottish Government (SG)

Apologies

• Mike Callaghan, COSLA
• Angela Grahame, Faculty of Advocates (FoA)
• Margaret Malloch, SCCJR
• Karyn McCluskey, CJS
• Teresa Medhurst, SPS
• Neil Rennick, SG
• Ronaldo Rennuci QC, FoA
• Duncan Sloane, PS

Secretariat – Scottish Government / COPFS

• Moira Price
• Anna Donald
• Zak Tuck
• Sarah Smith
• Bekki Aitken
• Blair Robertson
• John Wallace
• Saira Kapasi
• Ria Phillips
• Anthony Nevin

Items and actions

1. Chair's welcome and introductions

The Cabinet Secretary welcomed attendees to the ninth meeting of the Victims Taskforce which was the last of the current Parliamentary term and noted apologies.

The Cabinet Secretary referred members to Paper 1; minutes of the previous meeting on 9th December 2020, and provided an update in relation to the outstanding action on court transcripts.  It was noted that RCS had engaged with SCTS and the FoA.  The Cabinet Secretary stated that he would pick this up with SG officials.  The minutes of the previous meeting were agreed by members.

2. Victims voices

The Cabinet Secretary opened the item by drawing members attention to Paper 2 - victims voices.  He highlighted the four key themes that were presented in the Victims Voices paper at the last Taskforce meeting: being  heard; feeling safe; having access to the right information at the right time; and being treated with compassion.  The paper mapped progress made in relation to those key themes since the Taskforce commenced in December 2018, whilst also highlighting where gaps might exist.  The Cabinet Secretary noted this paper provided an overview of the work completed or being undertaken whilst also recognising there is much yet to be done. The paper posed a number of questions which members were asked to consider.

RCS informed members that the Survivor Reference Group now had 50 members.  Work was underway developing podcasts with survivors speaking about their experiences of the criminal justice process for use by criminal justice agencies as training material.

Members shared reflections on the current Scottish Parliament Committee inquiry on SG Handling of Harassment Complaints.  RCS fed back that a number of survivors had commented that the process had made them disinclined to report.  It was suggested that this situation had highlighted the need to put complainer anonymity in sexual offences onto a legal footing. 

The Lord Advocate observed that COPFS would take action to protect a complainer’s anonymity using powers available within the existing legislative framework where it was possible and appropriate to do so  The Lord Advocate highlighted that this was dependent on publications respecting rules of contempt of court in advance of a trial and respecting orders of court (should an order be made) after trial.   The Crown would respond when it was aware of a potential breach of those rules but ultimately it was for publishers to take an informed decision on what they could lawfully publish.

SWA commented on the work undertaken by VSS and Lynn Burns to keep the focus of the Taskforce on the impact on victims.  They reflected on the gap between policy intention and policy impact, and on the impact of Covid on progress and in highlighting the risks in the system for complainers.  They further highlighted feedback they have received from complainers about  failure to issue non-harassment orders, bail breaches and failure to respond to breaches of NHOs, and release of an offender without notification.

SG Director for Children and Families highlighted for potential inclusion in the paper the work being done on Barnahus, particularly the work being undertaken by Health Improvement Scotland and the Care Inspectorate on the Barnahus standards and indicators, and work Children 1st were taking forward on children’s rights. 

VSS commented they were keen to understand what the Taskforce would do next with the victims’ voices  work and to explore how point 3 in the paper regarding lived experience informing policy and practice would be taken forward and used in other areas of policy such as the Recover, Renew and Transform (RRT) programme.  VSS also suggested sharing paper 2 with the Justice Board and Criminal Justice Board.

The Cabinet Secretary commented on the points from VSS highlighting he was keen for Taskforce members to sign off Paper 2 which was directly informed by victims voices and highlighted where victims perceived gaps in support.  He commented that this paper could be used to work with justice partners on the four themes.  The Cabinet Secretary agreed it was important that Paper 2 is shared with the Criminal Justice Board.

Action: SG to consider sharing the victims voices paper with the Justice Board and Criminal Justice Board.

SWS highlighted the progress made in rolling out joint investigative interview (JII) training, however noted that some local authorities were struggling to deliver this due to funding issues in backfilling posts.  SWS also highlighted that the Caledonian system had 75% coverage across Scotland and asked about future plans for nationwide coverage.  SG confirmed the feasibility of national coverage was being considered.  There were also ongoing conversations with COSLA on JII implementation funding and SWS should receive some correspondence on that soon.

LSoS commented on the upcoming publication of ‘Improving the Management of Sexual Offence Cases March 2021, Final Report from the Lord Justice Clerk's Review Group’ , and asked when it would be published and its relevance to the work of the Taskforce.  They also asked for consideration to be given to the legal profession having a role on the RRT Advisory Group.  The Cabinet Secretary agreed to take forward this request. Members confirmed that the Lord Justice Clerk’s paper was due to be published in the week of 15 March.

Action: SG to give consideration to the role of the legal profession on the RRT Advisory Group.

3. Workstream updates 

Workstream one – victim centred approach

VSS spoke to Paper 4; victim centred approach (VCA) position paper, which set out options for a victim centred approach.  VSS highlighted the conclusions in the paper reached by the workstream governance group:

• the approaches set out in the paper should be explored in more detail and an exercise undertaken to map them against existing practices and services for victims in the justice system;
• there would be benefit in defining a clear system-wide, shared vision for a victim-centred approach, using the themes and aims identified in the paper as a starting point; and
• this work could form the basis of the development of an integrated, coordinated, long-term, system-wide project to achieving the shared vision for a victim-centred approach.  This plan will define a shared vision, include a set of key outcomes and information on costs, timescales, risks and the level of commitment that will be required by all partners to make progress.

SCTS commented they felt a combination of two approaches (B and D) was required.  Further consideration was needed on approach D as to what a transformational approach would look like.  SCTS suggested current approaches to improve victims’ experiences should be continued but with increased focus on the development of transformational change (e.g. where we want to be in 12-18 months’ time).

The Crown Agent also felt this was a helpful paper, and was in favour of aspects of approaches  D and C.  He noted that there was much to consider in this paper and time needed to be committed to this outside of  Taskforce meetings to move this work to the next stage.  Other members agreed with this point.

Members highlighted the need to focus on a theory of change and on outcomes and indicators. Members felt it was important that a system-wide shared vision should be defined, setting out what the system is attempting to achieve and then work back from there.   

The Cabinet Secretary commented that all approaches should be considered and were not mutually exclusive.  He agreed with other members in that time was required to consider how this work should be taken forward.  He noted the links between the transformational change approaches in the paper and the RRT programme and the option to expand existing services such as the Support for Families Bereaved by Crime service (SFBC).

VSS noted the point raised by Children 1st about how the adult justice system can learn from the Barnahus model.  They also highlighted that the SFBC service was one model of end-to-end support, however the National Advocacy Project provided by RCS was another and more work could be done looking at both those services. 

Lynn Burns echoed her support for the points made on the importance of having clear outcomes in order to ensure progress can be adequately measured and the need for a clear vision of what justice in Scotland looks like.   The Cabinet Secretary agreed with Lynn’s points and also that we need to break down a high level vision for justice into granular detail in order to make real changes that improve experiences for victims. 

Victim Notification Scheme Review

The Cabinet Secretary opened this item by drawing members’ attention to Paper 5; review of the victims notification scheme discussion paper.  He commented on his discussions with stakeholders where the Victim Notification Scheme (VNS) had been raised as an issue.  He invited members views’ on the issues in the paper – namely the rationale for review; who would need to be involved; appropriate timing and scope;  whether changes to legislation should be considered; and how should a review  be carried out.

VSS welcomed the paper and stated that a review of the VNS was badly needed.  They were concerned about some of the serious repercussions of the current operation of the scheme which they felt was not trauma-informed.  VSS had a preference for Option A or Option C, and were in favour of the accountability of Option A.  They could see the benefit in a service redesign company being aligned with a review.

SWA stated that they were uncomfortable with external organisations being involved with a review as they felt organisations already involved with the VNS  could answer a lot of the questions of what wasn’t working and where improvements could be made.  They felt a co-production option was missing and working with victims organisations in the first instance would be helpful.

The Solicitor General commented that the four principles highlighted in the Victims Voices work could help inform and feed into the VNS review.

SWA mentioned a proposal for working with young people with lived experience of domestic abuse and sexual assault, and that without that infrastructure, it was less likely to get good supported input from children and young people as to how systems affect them.  SG, Deputy Director Criminal Justice confirmed he was happy to look at this proposal again.

Action: SG to have discussion with SWA about proposal working with children and young people with lived experience.

The Cabinet Secretary recognised that a number of organisations should be involved in this work and that consideration needed to be given as to how to tap into lived experience.  He agreed with VSS that there was a need to ensure that lived experience was a sense check for the work and we shouldn’t build up victims’ expectations, then not match it.

The Cabinet Secretary committed that a review of the VNS would be taken forward and that based on feedback it appeared an external consultant was not required as part of this work but perhaps a hybrid of options A and C,

Action: SG to consider feedback on paper 5, develop and test an approach with relevant stakeholders and then make progress with the Review after the election.

Workstream two – trauma informed workfroce/training

CJS provided an update on progress of research work being undertaken by Dr Caroline Bruce, following her presentation at the last Taskforce meeting.

The return from Taskforce members volunteering to be involved in the interview research stage was high; 15 interviews with justice leaders had so far been undertaken, and Dr Bruce wished to convey her thanks to those who contributed their time to be involved.  It was anticipated that a draft report would be developed in the next few months, following analysis of responses.  Dr Bruce was looking at how best to interview and engage with people with lived experience of the justice system.

The workstream was mindful of phase two of the Taskforce and intended to undertake a membership refresh to identify any gaps.

Workstream three – sexual offences/gender-based violence

RCS introduced Paper 6; a report from a roundtable discussion held in November 2020.  The roundtable looked at issues around privacy rights for complainers, specifically the possibility of previous sexual history or medical records being interrogated and brought up in court, which could act as a significant deterrent to reporting rape. The roundtable also considered the feasibility of introducing legal representation for complainers where an application was made to introduce their sexual history or character.  There was consensus amongst the roundtable group about moving forward to develop further protections in that area.

The report presented a number of recommendations from the workstream chair, which Taskforce members were invited to agree:

• refocus workstream 3 under the Victims’ Taskforce Work Plan to progress a range of actions which will improve the experience of sexual offences complainers in the criminal justice system.  This will include consideration of relevant aspects of The Lord Justice Clerks’ Review on the Management of Sexual Offences Cases when this was published.
• support the need for further data which improves our understanding of how sexual history evidence and other evidence was being used, noting the JAS-funded research currently being progressed.
• prioritise the consideration of measures to ensure that sexual offences’ complainers privacy and dignity was protected, which includes:
  • engaging with the Law Society to raise awareness amongst the legal profession of the rights of complainers’ to voice their views through the criminal justice process;
  • giving consideration to the development of legal aid regulations to cover circumstances where mobile phone records were sought; and
  • giving thorough consideration to the introduction of independent legal representation for complainers where applications to introduce sexual history or character evidence were raised.

RCS considered that some of this work could continue even though the future of the Taskforce was undecided, and that hopefully progress can be made in short term. The Cabinet Secretary discussed the different approaches that could be made to this work; whether an itemised approach, or to consider in a wider sense, and stated that this was something for SG to reflect on.

Action: LSoS to have discussion with RCS regarding the recommendations in the report.

Action: SG to reflect on approach following the report on the roundtable on privacy rights of complainers.

The Crown Agent highlighted that the Law Officers have asked HM Inspectorate of Prosecutions in Scotland to look at s.275. This work was expected to commence in April and there would be a report available in due course.  RCS queried when new COPFS guidance will be published on s.275 and processes where sexual history or character evidence is sought to be used.

The Lord Advocate welcomes the paper and the recognition of the need to focus on the position as it is now, as opposed to considering historic data.  He explained that the Inspectorate would look at how the system currently operated, both in response to recent case law, which has clarified and given real focus to the limits on proper questioning of witnesses, and procedural changes resulting from the recent petition to the Nobile Officium case.  The Lord Advocate confirmed that processes had been put in place and guidance issues to COPFS staff to give effect to the High Court requirements following the petition to the Nobile Officium case.

Action: COPFS to engage with Rape Crisis Scotland regarding guidance on s.275.

SWA thanked SG officials for their work involved in developing the paper as SWA have struggled to have the capacity to co-chair this workstream.

SWA commented on action 3C in the workplan regarding addressing re-victimisation of children and their mothers in the context of court ordered contact. They would like a commitment to embedding ‘safe and together’ approaches through social work and all elements of the civil court process to help change the culture in court surrounding child contact. In addition they would like to see a commitment from JAS for research on the use of the child aggravator as part of the implementation of the Domestic Abuse Act.

SWA highlighted other work which could also have relevance to this workstream: work  undertaken with young people on the impacts of domestic abuse; a  Legal Education Foundation project gathering data on woman’s access to legal services which was due to report by summer;  SWA project allowing for a bespoke family law advice linked in to a SWA service in Edinburgh for which match funding from SG is sought.

SWA shared concerns on the inclusion of Shared Parenting Scotland as a stakeholder in work on child contact.

In relation to action 3e, SWA asked that there be a pause on the direction of travel of this work. SWA held a joint seminar recently with Social Work Scotland in relation to multi agency risk assessment in the context of domestic abuse and concerns were raised regarding  the DASH tool and whether it was fit for purpose.. Agreed that SG officials will liaise with SWA on this.

SWA also voiced concerns about the plan for further stakeholder meetings to take forward the workstream and asked that there be a focus on assigning outcomes to some of this work first.

The Solicitor General commented that there was no immediate need to commit JAS to conduct analytical work on the child aggravator and domestic abuse law.  Prosecutorial decision making around the use of aggravations was nuanced.

The Crown Agent commented that if civil courts sought to interpret the actions of the Crown in a different context and to a different evidential standard, this would be flawed on a number of levels. If this was the approach that was being taken then a conversation was required on unintended consequence of the aggravation and the need to ensure that there was an appropriate understanding of the considerations the Crown apply at the stage of libelling the aggravation and the extent to which this had any relevance to civil proceedings.

Police Scotland commented they were happy to discuss the DASH tool and risk assessments with SWA.

LSoS also commented they would be happy to have a further discussion with SWA on the issues coming from the Legal Education Foundation report.

The Cabinet Secretary commented that he and officials would consider the points raised by SWA.  He also commented on whether we need to invite the Judicial Institute to a future Taskforce meeting to reflect on points made by SWA related to judicial understanding and the training of judges and sheriffs. SCTS committed to engaging with the Lord President and the Judicial Institute on perceptions and understandings of domestic abuse and the points raised by SWA.

Action: PS to engage with Scottish Women’s Aid on the DASH tool and various risk assessment.

Action: SCTS to discuss with Lord President and the Judicial Institute regarding perceptions and understanding of domestic abuse.

Action: LSoS to meet with SWA on the Legal Education Foundation report

Workstream four – research

JAS provided an update on recently published results from the Scottish victimisation telephone survey.   

The Crime and justice survey data from Sept 19-Sept 20 was due to be published on 16th March, and would be of particular interest to Taskforce members; including data on stalking and harassment, domestic abuse and sexual crime.

JAS were currently working on research programme to meet requirements of s14 of Domestic Abuse (Scotland) Act.  Victims and witnesses research was being developed with third sector, academics, and statutory partners.  Later in the year, researchers would be having conversations with VSOs in order to identify relevant statistical data.  Intention was to launch the survey in May. 

Work on research to explore the use of evidence in the Taskforce workstreams was still underway.  This would identify gaps in the evidence base as experienced by workstream leads.  

SWA offered to support to JAS on developing their various pieces of work and evaluation and flagged that everybody had a role in ensuring equality was considered under the Public Sector Equality Duty.

The Solicitor General highlighted that a full bench appeal court hearing was due to be held in a case involving charges of rape and sexual offences in the context of domestic relationships. This would consider the definition of domestic abuse introduced by the Domestic Abuse (Scotland) Act 2018 and would be an important decision, with potential impact on the law of the Moorov and issues linked to Domestic Abuse.  She highlighted that developments in the law were an important part of the context of improving matters for victims and witnesses.

SWA commented that they would like further information on the case highlighted by the Solicitor General.

Action: COPFS to provide information to SWA on the case highlighted by the Solicitor General.

Workstream five – Specific Projects – Victims Commissioner

The Cabinet Secretary opened the item commenting that from the consultation with members and from the discussion at the last meeting, there was clearly a broad range of views on a Victims Commissioner in Scotland.  However, although there was not a settled view, there appeared to be more appetite for one that not.  The Cabinet Secretary reiterated that a Victims Commissioner would not be put in place overnight and work would need to be done to allay any concerns previously raised by members, for example on resources and how a Commissioner would fit into the current stakeholder landscape.  Further consideration would also need to be given as to how the appointment process and any underpinning legislation would operate.

SWA flagged that they still had strong reservations but these could be allayed somewhat if victims and victims organisations were involved in reviewing the outcomes for the role and in the appointment process.

4. Next steps

The Cabinet Secretary shared his thoughts on the Victims Taskforce and his view that bringing together the third sector, leaders in the justice system and victims voices had been invaluable.

VSS commented on the progress of workstreams and felt that these should continue, regardless of the Taskforce’s future.  They also felt the amount of work that needed to be progressed was a strong argument for the Taskforce continuing.

SG assured members that officials would continue to consider the actions in the work plan during the pre-election period, as far as was appropriate under restrictions on government business during this period.   

LSoS informed members of their published list of priorities for the upcoming Scottish Election. They highlighted two priorities for members to be aware: firstly a reform of fatal accident inquiry legislation; and secondly law reform of current homicide law in particular the Scottish Law Commission will publish recommendations on homicide law in the next parliamentary term.

Lynn Burns shared her appreciation of the work of the Taskforce over the last couple of years, but reflected that there was still an enormous amount of work to do. She felt that there is an expectation that the Taskforce should drive forward change with a focus on outcomes, whoever is in Government after the election.  The Cabinet Secretary thanked Lynn for engagement in the Taskforce and noted she had gone above and beyond in her contribution. 

5. AOB

Catalogue of Initiatives

The Cabinet Secretary reminded members of the Catalogue of Initiatives and asked whether they wished for the paper to be updated and published online as part of the end of the current phase of the Taskforce.  Members agreed this should be done.

Action: SG to commission update from members on the Catalogue of Initiatives.

The Lord Advocate endorsed the Cabinet Secretary’s closing remarks and thanked everyone involved in Taskforce.  He appreciated and shared frustrations, but also recognised that collectively a lot of important work had been done and laid a good foundation to move forward.

VSS raised a point from SCID at recent VOCFS regarding a recently published Sentencing Council report on public perceptions of sentencing in relation to driving offences.  SCID was keen to know about progress made.  SG confirmed this was highlighted in the work plan and will follow up with VSS and SCID on this and on the actions in the workplan relating to driving offences.

The Cabinet Secretary closed the meeting conveying his thanks to Taskforce members and the Secretariat.

Action	Owner
SG to consider sharing the victims voices paper with the Justice Board and Criminal Justice Board.	SG
SG to give consideration to the role of the legal profession on the RRT Advisory Group.	SG
SG to have discussion with SWA about proposal working with children and young people with lived experience.	SG/SWA
SG to consider feedback on paper 5, develop and test an approach with relevant stakeholders and then make progress with the Review after the election.	SG
LSoS to have discussion with RCS regarding independent legal representation and legal aid regulations	LSoS
SG to reflect on approach to work following roundtable on privacy rights of complainers.	SG
COPFS to engage with RCS regarding the guidance on approaches to s.275.	COPFS/RCS
PS to engage with SWA on the DASH tool and various risk assessment.	PS/SWA
SCTS to discuss with Lord President and the Judicial Institute regarding perceptions and understanding of domestic abuse.	SCTS
LSoS to meet with SWA on the Legal Education Foundation report	LSoS/SWA
COPFS to provide information to SWA on the case highlighted by the Solicitor General	COPFS
SG to commission update from members on the Catalogue of Initiatives.	SG

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