Victims, Witnesses, and Justice Reform (Scotland) Bill: business and regulatory impact assessment

Consultation

Within government

Within government and justice delivery agencies, consultation has taken place with the Access to Justice Unit, Justice Analytical Services, Scottish Courts and Tribunals Service (SCTS), the Judiciary of Scotland, the Crown Office and Procurator Fiscal Service (COPFS), Police Scotland and the Scottish Legal Aid Board (SLAB).

Consideration of some of the measures has also taken place at the Scottish Government-led Lady Dorrian Review Governance Group, which brings together partners from across the justice system to consider approaches to implementing the recommendations of the Review on a cross-sector basis.

This engagement has helped us consider the practicalities of the proposals and has helped inform our analysis in relation to costs.

Public consultation

The public consultation on improving victims' experiences of the justice system included proposals relating to the measures in the Bill. The consultation ran for 14 weeks between 12 May and 19 August 2022.

The consultation received 69 responses - 24 (35%) from individuals and 45 (65%) from organisations, which are broken down in the following table:

An independent analysis of the consultation responses found that, across the responses, there were strong levels of support for almost all of the proposals posited. While some attracted a more neutral response than others, very few proposals were met with a negative response.

The analysis found that the main perceived impact for businesses and the third sector was a potential increase in demand for support and advocacy services as a result of some of the proposals being put forward, which may impact on existing services and require additional funding/resourcing as a result. Smaller organisations working with victims and witnesses (especially in rural and remote areas) may be particularly affected.

It was felt that the appointment of a Victims and Witnesses Commissioner may also impact on the workloads of those already in the victim/witness support sector (in terms of engagement) and would also need to be resourced. Similarly, it was suggested (mainly by victim and witness support organisations) that clear structures and processes would need to be put in place to ensure that the Commissioner engages properly with third sector organisations working within the justice system.

Comments were also made about impacts of the proposals on court business scheduling and the speed with which cases could progress through court, and the need for more legal aid funding to support victims.

As part of the consultation process, a workshop was held with stakeholders to consider the proposals to establish a Victims and Witnesses Commissioner. Attendees included representatives from local government, criminal justice agencies, the legal sector, academia, the third sector and individuals with lived experience of crime. The impact of the Commissioner on victim support organisations and the need for the role to be sufficiently resourced were considered at this event.

The other consultation which has been used to inform the Bill was a consultation on the not proven verdict and related reforms. The analysis of responses to that consultation did not identify any significant matters relevant to the BRIA.

Business

The measures in the Bill will mainly impact on public service providers, the third sector and the legal profession. Given this, engagement has primarily focused on stakeholders from these areas during the development of policy for the Bill.

The Law Society of Scotland and the Faculty of Advocates, which represent the legal profession in Scotland, provided responses to the consultations, as did a number of third sector organisations who provide advocacy and/or support to victims and witnesses. A summary of the feedback in relation to impacts on businesses is set out in the 'Consultation' section above.

Further consultation in relation to the measures which create a Sexual Offences Court and the right to independent legal representation has taken place with organisations representing the legal profession to help us consider what specific impacts they may have on businesses in this area.

This has involved exploring options, with SLAB and the Public Defence Solicitors Office (PDSO) on how best to implement independent legal representation to achieve security of service, sufficient capacity and quality of service delivery. The Scottish Government considers that there should be flexibility around the delivery mechanism to allow models to be tested and adapted against service demand, including any wider changes arising from the implementation of the other provisions within the Bill. The framework of any operational delivery mechanism for independent legal representation is still being considered and defined, and it is not considered necessary or helpful to frame that within the Bill.

Discussions have also taken place with SLAB and PDSO about the impact of the proposals to establish a Sexual Offences Court, as well as with the Law Society and Faculty of Advocates both unilaterally and through a working group that reports to the Lady Dorrian Review Governance Group, which was set up to consider aspects associated with the creation of the new Court in order to help with its implementation.

The policy development for the right to anonymity noted that there may be an impact on media businesses, but no direct consultation was carried out as this is not considered a substantively new impact. Instead, the measure formalises current convention and existing code of practice by media business outlets.

The potential impact on third sector support and advocacy services in terms of increased demand and the creation of a Victims and Witnesses Commissioner (as highlighted in the responses to the consultation on improving victims' experiences) has been considered as part of the policy development process, which has involved engagement with victim support organisations.