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

Costs

Option 1 – Do nothing

While there are generally no direct costs arising from this option it would mean that potential savings arising from more efficient management of court and judicial resources as would be achieved by option 3 would not be realised.

Significant work on training staff in trauma-informed practice is already underway across the justice sector and justice agencies have previously committed toimplement the aims of 'Trauma Informed Justice – A Knowledge and Skills Framework for Working with Victims and Witnesses' across their workforces. The costs set out in the Bill's Financial Memorandum in respect of trauma-informed training should therefore be seen in the context of longer-term work already in train across the sector, rather than as only resulting from the provisions of the Bill. This means that the option of not progressing the Bill will still have costs in respect of this type of training.

In respect of implementing the provisions in the 2020 Act on special measures in child contact and residence cases rather than extending the provisions to other family cases and to civil cases generally, there will be costs to the Scottish Government in setting up and running a register of solicitors when a party is prohibited from representing themselves and carrying out personal cross-examination and providing public-facing information about the changes in special measures under the 2020 Act. There will also be costs to SCTS in the purchase of equipment for special measures (e.g. TV links, screens and equipment enabling those in the court to see the individual who is giving participating via a TV link). There may also be costs for any additional power, network costs or additional building work and any rent, additional hardware (broadband link etc) if an external room is required.

SCTS will also have costs in terms of additional hearings if information is required to be obtained from criminal databases. This will happen if there is a dispute as to whether or not one of the parties in a case has been convicted of, or is being prosecuted for, a criminal offence against one of the other parties, which is a trigger for special measures under the 2020 Act. It is noted that such hearings are anticipated to be relatively rare.

Option 2 - Non-regulatory / more restricted legislation

The costs set out in option 1 would be applicable under this option.

In addition, there would be further costs to SCTS in relation to trauma-informed training for staff dealing with sexual offence cases, as this option would set up specialist divisions in existing courts rather than create a new Sexual Offences Court.

The establishment of such specialist divisions would also result in costs for COPFS. It is anticipated to embed specialism and raise standards in the management of sexual offence cases, which will result in a more resource intensive process for prosecutors in their approach to the preparation and presentation of cases and in terms of support and communication with witnesses and complainers. This will inevitably generate costs for COPFS.

Costs may also be incurred by law firms if there is a requirement for legal practitioners to complete trauma-informed training before gaining rights of audience to specialist courts.

Option 3 – Regulatory option

The Bill will result in costs for agencies and businesses in the justice sector.

These are considered in detail in the Financial Memorandum for the Bill and are summarised below.

Establishing a Victims and Witnesses Commissioner for Scotland

This will result in costs for the Scottish Government and Scottish Parliament in the set-up of the office and thereafter running costs.

It is noted that the analysis of responses to the consultation on improving victims' experiences of the justice system highlighted that some respondents felt 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. While the practical details of engagement will be a matter for the independent office of the Commissioner, the Bill provides that engagement must take place and that the Commissioner must prepare and keep under review a strategy for engagement.

Embedding trauma-informed practice across the justice system

There will be costs to justice agencies - SCTS, COPFS, the Scottish Prison Service, Police Scotland and the Parole Board for Scotland - in respect of trauma-informed training for staff. As set out in option 1, these costs should be seen in the context of longer-term work already in train across the sector, rather than as only resulting from the provisions of the Bill.

Special measures for vulnerable parties and witnesses in civil cases

The costs set out in option 1 in relation to setting up the register of solicitors, the purchase of equipment, updating public-facing information and hearings to obtain information from databases also apply to this option. The cost of running the register of solicitor will be greater than in option 1, as the measures in the Bill will apply to more cases than those in the 2020 Act.

Abolition of the not proven verdict and related reforms

No significant costs have been identified in relation to these measures. Potential savings are described in the benefits section above.

Creating a Sexual Offences Court

It is not anticipated that new court buildings or additional staff or judicial resourcing will be required to establish and operate the Court. Rather, the model of specialist court provided for by the Bill is intended to facilitate a more flexible use of the existing court estate as well as of other court and judicial resources as a result of which some savings are expected. Adoption of a phased approach to operationalising the Court may also mitigate some of the costs identified below.

SCTS will incur additional costs in terms of establishing and operationalising the Sexual Offences Court. The most significant costs that SCTS are expected to incur as a result of setting up the new Court will arise from the development and implementation of training for clerks and court staff to resource the Sexual Offences Court. Expenditure will also be incurred in order to put in place the infrastructure required to implement the new Court including upgrades to existing IT systems as well as rebranding of the court estate to take account of the Sexual Offences Court.

Staffing costs will also represent the most significant recurring cost that will be incurred by SCTS as a result of establishing the new Court. Recurring costs will also arise from the expansion of Ground Rules Hearings to all cases in which a complainer is required to give evidence.^[1]

Ongoing costs are expected to be incurred by COPFS as a result of establishing the Sexual Offences Court. The Court is designed to embed specialism and raise standards, providing an opportunity for wholescale improvement and transformational change. If this ambition is to be maximised, this will inevitably result in a more resource intensive process for prosecutors in their approach to the preparation and presentation of cases and in terms of support and communication with witnesses and complainers. This will be seen most acutely in the changes required in the approach to solemn cases which would otherwise have been prosecuted in the Sheriff Courts.

Any significant increase in the use of pre-recorded evidence will have significant resource implications for COPFS. While to a great extent, irrespective of the Bill, these would have been incurred from further implementation of the 2019 Act, it is recognised that the ambition of the Court is to better support complainers to give their best evidence and that an increased use of pre-recorded evidence will be an important aspect of that approach.

The proposed extension of Ground Rules Hearings to all cases calling in the Court where evidence is to be given by a vulnerable witness will also have resource implications for COPFS in preparing for and presenting at further procedural diets. Costs to COPFS will be dependent on operational decisions that are taken after the legislation is agreed.

The expansion of the power to impose Orders for Lifelong Restrictions (OLR) to those presiding over cases in the Sexual Offences Court will place additional costs on the Risk Management Authority (RMA), the non-departmental public body with responsibility for administering and overseeing the standard setting, accreditation and approval processes that support OLRs. The power to impose an OLR is currently restricted to those presiding over cases in the High Court, for which senators and temporary judges undergo specific training on the imposition of OLRs and the risk criteria associated in doing so. The extension of this power to sheriffs principal and sheriffs who are appointed to preside over cases in the court as Judges in the Sexual Offences Court means that they will also be required to undergo this training, which will come with an associated cost for the RMA.

Costs will also be incurred by solicitors' firms arising from the requirement for legal practitioners to complete trauma-informed training before gaining rights of audience to the Sexual Offences Court.

Lifelong anonymity for complainers in sexual and certain other offences

There are no significant costs associated with this measure. Those who currently publish identifying information will not be permitted to do so in the future, and this is not considered to be a significant number as mainstream media already follow a non-statutory protocol in this area.

While the measure creates a new criminal offence of breaching anonymity and provides a court process in which children may waive anonymity through third party publishers, such as newspapers or television programmes, it is expected that both of these aspects of the measure will be rarely used. This assumption has regard to breach rates of equivalent offences in England and Wales and other available (costless) routes through which third party publishers may tell a child survivor's story, either through anonymous publication or through the young person's unilateral written consent at age 18.

Right to independent legal representation for complainers when applications to lead sexual history and/or 'bad character' evidence are made in sexual offence cases

This measure will have cost and resource implications for SCTS. These will include the costs associated with the proposed introduction of a requirement on the courts to consider applications for disclosure of evidence by the Crown to the complainer's independent legal representative. To date there is no reasonable comparator of the type of application in the current court process making quantification of costs particularly difficult.

It is also anticipated at this juncture that additional court time will be incurred to facilitate the making - and the consideration by the judiciary - of representations from the complainer's independent legal representative at the hearing where the application to lead sexual history/'bad character' evidence is being considered. SCTS has advised that the additional time taken and the associated cost implications is extremely difficult to assess given the number of variables involved in such applications, including length, terms, number of accused, as well as the uncertainty of volume. A similar approach to costings for the disclosure applications is likely to apply with additional court time and reducing the number of procedural hearings that can proceed in a court day. Again, for the reasons narrated above, estimated costings cannot be provided at this stage.

There will be resource costs arising from COPFS having new statutory duties including to notify a complainer of the application to lead sexual history/'bad character' evidence and to disclose specified information to the complainer's independent legal representative. The specific costs will depend on a number of variables, with the use of the provisions being demand-led. The costs arising will also depend on how COPFS operationalise the new requirements.

There will be costs associated with communication and widening awareness of the Bill and its implication for complainers, but these are not considered to be significant, and may involve utilisation of existing methods and processes.

Piloting single judge trials for cases of rape and attempted rape

Provisions in the Bill give Scottish Ministers the necessary powers to bring forward secondary legislation to enable a pilot of single judge trials for cases of rape and attempted rape. The provisions do not specify the detailed case criteria for how such a pilot should operate. This will be subject to further consideration through secondary legislation that will be brought forward for parliamentary scrutiny at a future date.