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

Impact tests and assessments

Regulatory and EU Alignment Impacts

Intra-UK Trade

The measures are not likely to impact on intra-UK trade.

International Trade

The measures are not likely to impact on international trade and investment.

EU Alignment

The measures are not likely to impact on the Scottish government's policy to maintain alignment with the EU.

It is noted, however, that some of the measures are in line with provisions to protect victims set out in EU Victims Directive.

Scottish Firms Impact Test

The costs identified will largely fall on public sector delivery organisations in the Scottish justice system. Engagement has taken place with relevant stakeholders in this area via the public consultation and direct engagement throughout the policy development for the Bill.

Potential impacts on legal firms have been identified in respect of the measures relating to independent legal representation and the Sexual Offences Court.

The creation of a right to independent legal representation may place an additional burden on the number of qualified solicitors in Scotland who are able to undertake the role of an independent legal representative.

The requirement on legal practitioners to complete trauma-informed training before they are able to appear in the Sexual Offences Court will inevitably have an impact on solicitors firms arising from the costs in both time and financial resources associated with putting the relevant employees through this training. Those firms that do not put relevant legal practitioners through the necessary training will experience a financial impact arising from being unable to collect fees for representing the accused in cases indicted to the Sexual Offences Court.

Engagement about these measures has taken place with the legal profession, again through the consultation and directly with organisations including SLAB, the Law Society of Scotland, the Faculty of Advocates and PDSO.

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.

Competition Assessment

The requirement on legal practitioners to complete an approved course of trauma-informed training before they are able to appear in the Sexual Offences Court may impact on the pool of solicitors, solicitor advocates and advocates available to represent those accused whose case is indicted to the Court. Legal practitioners may decide that they do not wish to complete trauma-informed training in which case they would remove themselves from the list of those able to represent an accused and thereby reducing the choice of representation available for someone charged with a sexual offence.

This is alongside provisions in the Bill which prohibit an accused from self-representing in cases indicted to the Court and which mean that an accused must be represented by a solicitor, solicitor advocate or advocate as well as existing pressures on the criminal defence bar highlighted which is restricting the availability of legal practitioners.

Consumer Assessment

The Bill will have a positive impact on victims, witnesses and vulnerable parties as it contains measures which strengthen their rights and introduces reforms aimed at improving their experiences and providing increased protections for when they come into contact with the justice system.

Individuals accused of crime and subject to civil proceedings may also benefit through the embedding of trauma-informed practice. The measures which are aimed at improving case management will also have a positive impact on people accused of crimes as they should lead to less delay and increased certainty about scheduling.

The requirement in the Bill on legal practitioners to complete trauma-informed training before being able to appear in the Sexual Offences Court may impact on the ability of an accused in a case which features a sexual offence on the indictment to secure legal representation. It is possible that some solicitors, solicitor advocates and advocates may decide against completing trauma-informed training which would reduce the pool of legal practitioners available to represent an accused. This is against a backdrop of shortages in the number of those working in the criminal defence bar and exacerbated by court backlogs generated by the COVID-19 pandemic which are placing significant pressures on the legal sector.

Test run of business forms

Civil court rules may be needed for some of the measures in the Bill, including special measures in civil cases and the right to anonymity. The Scottish Government will, in line with usual practice, send a policy paper to the Scottish Civil Justice Council to propose new rules.

It is expected that forms will require to be amended or new ones created to reflect the proposed procedures and associated legislative changes in relation to the Sexual Offences Court and independent legal representation.

For the former, it is anticipated that new forms will be required relating to the transfer of cases into and out of the Sexual Offences Court.

Potential changes to forms in respect of independent legal representation may include:

• amended or new forms associated with confirmation of notification to the complainer
• a notification form to the court/prosecutor of the independent legal representative's appointment
• any notification form seeking disclosure from the prosecutor
• any application for disclosure of evidence and associated intimation forms for the accused
• current forms associated with applications to lead sexual history/'bad character' evidence and appeals therefrom will also require updating

The costs associated with this are likely to be minimal but cannot be quantified at present. The Scottish Government will work with SCTS to consider the impact and ensure new forms are co-developed with relevant organisations and businesses, where applicable.

Digital Impact Test

There is no evidence that the provisions will have a disproportionate impact either on offline or on-line businesses.

The measures on special measures in civil cases may result in an increased use of live TV links, but this is not anticipated to have a significant impact other than additional costs to SCTS to purchase equipment to facilitate this. It is noted that wider work is ongoing in relation to the impact of the increased use of technology in civil cases, with the Scottish Government having commissioned research on the lessons to be learnt from the remote hearings which took place during the COVID-19 pandemic. This project is due to report in Spring 2023.

While the right to anonymity may relate to information published online, digital technologies/markets/the online context have no bearing on the ability to provide for this measure in law. The measure is automatic with no positive actions required and is applicable regardless of context.

Legal Aid Impact Test

Some of the measures in the Bill may result in additional expenditure from the legal aid fund.

Special measures for vulnerable parties and witnesses in civil cases

There could be additional costs to the legal aid fund through the enhancement of special measures in civil cases. This would be the case under both options 1 and 2. SLAB has noted low levels of expenditure over the past 10 years met through the legal aid fund in relation to existing provisions on special measures in children's legal aid cases and civil cases. This expenditure could increase once special measures in civil cases are enhanced.

This expenditure may relate to hearings where evidence is taken by commissioner and where the legal aid fund is meeting the costs of the commissioner and shorthand writer; and/or it may relate to meeting costs associated with a supporter attending court with the applicant.

In particular, there may be costs in relation to extending special measures in non-evidential hearings if a party who has, for example, experienced domestic abuse wishes to have a supporter. In particular, this may happen at Child Welfare Hearings in child contact and residence cases, as Child Welfare Hearings are generally non-evidential.

As set out in the costs section and in relation to special measures in civil cases, there could be additional hearings in relation to obtaining lawful authority to disclose information from databases. However, this is likely to be relatively rare. The need should only arise when a factual issue of this nature is disputed between the parties or there is uncertainty. When there is a dispute, the ability to seek a court order to obtain information from databases may act as an incentive to resolve the matter before any hearing takes place.

Creating a Sexual Offences Court

While there are no direct costs to SLAB arising from provisions establishing the Sexual Offences Court, the new Court will require changes to existing legal aid provision.

Under current arrangements, an accused who is granted legal aid in a case indicted to the High Court automatically receives an enhanced entitlement to legal aid for the purposes of instructing an advocate or solicitor advocate. This reflects the fact that solicitors are not entitled to appear in the High Court. In the Sheriff Courts, where cases can be conducted by solicitors as well as advocates/solicitor advocates, an accused wishing to receive funding to instruct an advocate/solicitor advocate must apply to SLAB for sanction to do so. As the Sexual Offences Court will bring cases together that would previously have been heard across these two courts, consideration will be given as to how to best reflect and provide for this in terms of legal aid entitlement across the range of cases the Court will hear.

How legal aid will work in the Sexual Offences Court, specifically in relation to entitlement to sanction for counsel, is still being determined and will likely be brought forward through secondary legislation. A full Legal Aid Impact Test on the Sexual Offences Court will be conducted as part of the development of amendments to these Regulations.

Lifelong anonymity for complainers in sexual and certain other offences

The measures creating a statutory right to anonymity may also incur additional expenditure from the legal aid fund. This is by virtue of one aspect of the policy that where a third-party publisher wishes to publish identifying information about a child complainer (aged under 18), they must seek court permission to do so through a summary application process to the civil court.

While third party publishers who are not individuals, i.e. media organisations or publishers, are not currently eligible for legal aid for summary applications (and there is no proposed change to this) it is recognised that any child who is the subject of the application by a third party publisher will require to participate in the court proceedings and share their views. The policy is that the child should have access to legal aid in order to benefit from a legal representative during this process.

Under the existing legal aid framework, civil legal aid (and civil advice and assistance) would be available for children if a third-party publisher applied to the court to waive a child's anonymity because the child would be an individual party to civil summary application proceedings, in respect of which there is existing legal aid provision. This measure would not require any regulatory change. In practice, the waiver application process is not anticipated to be used very much, if at all. Accordingly, any additional expenditure from the legal aid fund is expected to be minimal.

Following engagement with SLAB, one overarching aspect for policy consideration is the question of means testing. The current standard eligibility criteria for civil legal aid require regard to be had to parental resources in many circumstances. A policy determination is therefore to be made as to whether legal aid for the child anonymity waiver process should be means tested or non means tested.

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

Details are still to be confirmed around the exact funding mechanism for the introduction of independent legal representation, but this option will have read across and a potential impact on the legal aid budget.

While the funding and delivery mechanism is not set out within the Bill, it is intended that complainers will automatically be entitled to fully publicly funded independent legal representation, on a non-income assessed basis, in relation to applications to lead sexual history/'bad character' evidence. If the Bill passes, amendments to existing legal aid regulations will make provision for legal aid for independent legal representation, in these circumstances, to be available to all complainers on a non-means tested basis.

The costs to SLAB of funding the proposals are difficult to estimate as they will be demand-led and will increase considerably if this right were subsequently extended to other offences. There is also currently limited data held on applications to lead sexual history/'bad character' evidence, adding to the difficulties of estimating costs for the measure.

It is acknowledged that capacity within the legal sector is currently under significant pressure and these provisions are likely to add to that. There will also likely be costs with establishing and maintaining the operational delivery model for this measure, ongoing training and evaluation of the effectiveness of such a role.

Future and ongoing costs will also be considered alongside wider financial developments relating to the provision of legal aid.