Widening the scope of the current victim statement scheme: consultation analysis

Other considerations

Question 5

Are there any other aspects of the current victim statement scheme which you consider could be improved?

Option	Total
Yes	19
No	9
Not Answered	10

Over half of those who answered this question felt that there were other ways in which the victims statement scheme could be improved. Respondents were invited to provide suggestion on improvements. This question also led to a broad set of suggested improvements from those who answered yes, with 30 separate proposals. Some of the suggestions repeated points made by respondents earlier in their consultation responses, however it is clear that strong feelings are held about how the victim statement scheme could be improved. Points made relating to these themes are summarised in the table below

Summary of Responses

Considerations for a new system	Total
System needs to be trauma informed	4
Avoid creating unreasonable expectations/manage expectations of victims	2
We should get Judicial opinion on changing the system	1
There could be a perception of an erosion of judicial independence	1
Only certain stalking charges should be allowed for victim statements	1
Clarification on the purpose of the scheme is needed (Information for judges or a cathartic experience for victims)	1
Guarantee long term funding for support organisations	1
If victim statement not available to all victims it will limit access to justice	1
Clarify how a victim statement will be used	1

One individual advised that changes need:

“to be written and designed with a trauma informed lens, ensuring that the process does not compound the trauma further.”

Things that can be considered for the current system	Total
Better COPFS guidance required	3
Use an electronic victim statement form	3
Make sure that the forms and info on how to complete them are freely available	3
Change the name of the scheme to avoid confusion with witness statements – for example - Victim Impact Statements	2
Victims should be contacted to provide their victim statement differently than at present	1
There needs to be assurance that judges pay attention to a victim statement	1
A link to the Scottish Legal Aid Board should be included in the victim statement information	1
Remove any restrictions on what can be said in a VS	1

In relation to the name of the scheme, Louise Johnson of Scottish Women’s Aid suggested that:

“Given that the purpose of the Scheme is stated as allowing victims the opportunity to tell the court about the impact of the crime on them and how it has affected them physically, emotionally and financially, consideration should be given to formally re-naming the document as “Victim Impact Statements.” The terminology would both differentiate them from statements given by victims to the police and to clarify and underline their purpose.”

Victim statement recording	Total
Victim statement should not be taken by the police	3
Partner organisations/ Victim support organisations take statements	2
Victims should work with an appropriate support worker	1
Personal direct support providers should not help fill in forms due to recent abuses of that position	1
Barnahus – single interview model for children	1

The Manda Centre stated that:

“making the statement can be extremely traumatic and it would be beneficial if they could make the statement to an organisation providing both practical, emotional and holistic support rather than to the police.”

Timing of the statement	Total
Change the time in the process at which the forms are issued	2
Take victim statement at the time of the Witness statement	2
Witness Support could prepare victim statement on the day that the trial concludes	1
Statement shouldn’t be collected by COPFS until after the verdict is passed. Potential issues with COPFS receiving the victim statement early in process that contained discrepancies or facts not in evidence that need to be disclosed to the defence lawyer.	1

In relation to disclosure of the victim statement Gillian Mawdsley of the Law Society of Scotland asked:

“Would there be means to have the victim statement provided direct to the Court which remains unread until such time as a guilty plea is tendered or conviction obtained? That would resolve any issue about requiring disclosure. It is outside of the Crown’s control and knowledge.”

Victim statement and wider justice	Total
Make victim statement a key part of restorative justice	3
Improve support for victims during and after filling in the form	2
Allow victim statement to be used to help create criminal justice social work reports	2
Link victim statement to parole – akin to England and Wales.	1

James Maybee of Social Work Scotland said:

“justice social work prepared 28,400 criminal justice social work reports (CJSWR) in 2017/18 to assist the court in determining the right sentence for the individual. Each report analyses the offence(s) and requires an explicit analysis of ‘the level of recognition by the offender on the impact/consequences of the offence(s) on the victim/community’…

However, in most cases the justice social worker is reliant on the terms of the charge(s) and what the individual tells them in interview. The social worker does not receive the Crown Office’s Summary of Evidence or any other independent and objective account of an offence and the consequences for a victim. (There are exceptions to this…) This not only disadvantages the social worker in providing a fully informed analysis and assessment of risk and need, but also denies the victim an opportunity to articulate how the crime has impacted them.”

Tom Halpin of Sacro stated that:

Sacro believes that this is an opportunity for victims to be given a choice to explore the option of restorative justice with a facilitator. This may bring a range of benefits for the victim and is congruent with the Scottish Government’s Action Plan for the introduction of restorative justice across Scotland by 2023.

Question 6

Do you have any views on whether we should consider amending the definition of who is eligible to make a victim statement (as set out in section 14 of the Criminal Justice (Scotland) Act 2003), to help ensure all relevant victims are able to make a statement if they wish - This would, for example, ensure the statutory aggravation related to a child in the Domestic Abuse (Scotland) Act 2018, would trigger the right for a child named as being involved in the offence to make a victim statement.

Another potential issue explored in the consultation relates to developments in criminal law in some areas whereby people who are recognised as victims in the relevant legislation may not always be captured by the definition of who is currently eligible to make a victim statement (as set out in section 14 of the Criminal Justice (Scotland) Act 2003)^[7].

A new statutory aggravation related to a child provided for in the Domestic Abuse (Scotland) Act 2018 which can be attached to the domestic abuse offence. The child, in some circumstances, may be considered a victim and would therefore be entitled to make a statement under the existing scheme. However, in other circumstances, depending on the manner in which the aggravation is triggered, then the entitlement to make a victim statement would not apply.

We are also aware of other circumstances in which the current eligibility set out the 2003 Act does not reflect those people who were in reality most closely connected to a deceased victim, or most directly affected by the offence.

27 respondents replied to this question expressing a broad variety of views. The most prevalent, with five responses, was that everyone should be given a choice and support to make a victim statement and that children should be able to complete a victim statement. Points made relating to these themes are summarised in the table below.

Summary of responses

Who should be able to make a statement	Total
Everyone should be given a choice and support to undertake a victim statement	5
All victims	2
Close friends should be able to complete a victim statement should a victim be deceased. They are sometimes closer to the victim	1
Close relative	1
Other relevant agencies on behalf of vulnerable victims such as Social Work or Child hearings	1
Other relevant people (close friends, support worker) should be able to complete a victim statement	1
Partners in obscene images offences	1
Persistently targeted victims	1
Secondary victims should be able to complete a victim statement	1
Support workers for people with limited capacity	1
Vulnerable or intimidated victims	1

Rhona Willder of Scottish Independent Advocacy focused on modern familial models and stated that they:

" would like to see an amendment to the definition of who is eligible to make a victim statement. The current list is outdated and does not reflect modern relationships. We would like to see recognition within the list that not everyone will have close living relatives. Frequently a close friend may be more appropriate than a family member to take on the role of making the victim statement if they choose to.

Some people who have limited capacity or communication may not have anybody in their life. They might have an independent advocate or a positive relationship with a support worker. People should be given the option of making the victim statement in these cases."

A focus on Children	Total
Children should be allowed to complete form	5
12 year old is arbitrary – younger children can be capable	3
Parent/carer/sibling of child victim	2
Use child aggravator laws properly	3
Don’t arbitrarily assess capability of vulnerable witness	1
Improve Section 14 of The Criminal Justice (Scotland) Act 2003) in relation UN Convention on the Rights of Persons with Disabilities	1
Make sure changes link to Article 12 UNCRC	1
Make sure changes link to Children (Scotland) Bill 2019[8]	1

South Lanarkshire Gender Based Violence Partnership stated that:

“it is also crucial that the child aggravator is used correctly and children are appropriately named in charges.”

Oonagh Brown of the Scottish Commission for Learning Disabilities stated that

“To ensure legislative consistency, SCLD believes it will be critical that Section 14 of The Criminal Justice (Scotland) Act 2003 is amended to reflect this commitment to advancing children’s rights in Scotland.”

And that:

“section 14 (of The Criminal Justice (Scotland) Act 2003) requires strengthening to ensure a closer alignment to Article 13 of The United Nations Convention on the Rights of Persons with Disabilities with regard to people with learning disabilities access to justice and ensuring their, “…role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages”

Other Considerations	Total
Address any inconsistencies in scheme	1
it should be written in law to ensure it actually happens	1
More investigation and consultation is required	1

Rose McConnachie of Community Justice Scotland noted that

“It would make sense to adjust the definition [of a victim] in order to address potential inconsistencies produced by the impact of new legislation, as with the example set out in the consultation paper.”