Widening the scope of victim statements
In Scotland, victims of the most serious crimes may be eligible to make a victim statement. This is a written statement that gives a victim the chance to tell the court – in their own words – how a crime has affected them physically, emotionally and financially. In reaching their sentencing decision the Judge or Sheriff will take into account a number of different factors, reports and other information available to them, including the victim statement.
We have committed to consulting on the details of widening the range of serious crimes which carry the right to make a victim statement.
2. Why we are consulting
The purpose of this consultation is to seek your views on proposed changes to the victim statement scheme.
The current list of offences in relation to which a statement can be made was prescribed in 2009. Since then a number of new, serious offences have come into force in Scotland in relation to which a victim statement cannot be made, for example stalking and the domestic abuse aggravation. In addition, the courts in which a victim statement can be taken into account are limited to solemn proceedings.
Currently, the statement can only be presented in writing, however section 23 of the Victims & Witnesses (Scotland) Act 2014 (the 2014 Act) provides powers to pilot (and extend more widely if appropriate) different ways for a victim statement to be made, for example by pre-recording it so it can be played in court.
We are committed to putting victims of crime at the centre of the justice system and to improving support, advice and information for victims and their families.
This consultation is a key part of ensuring that victims’ voices are represented. It will help us decide how the current list of offences should be updated and which offences should be included. It will also help us consider whether we should pilot new ways for victim statements to be made to the court and obtain views on any other aspects of the current process which you consider could be improved.
3. Legislative background
Section 14 of the Criminal Justice (Scotland) Act 2003 (the 2003 Act) gives victims of certain crimes the right to make a statement about the crime’s impact on them, to be submitted to the court after a conviction and prior to sentencing to inform the Judge or Sheriff as they make their sentencing decision. Section 14 provides for the Scottish Ministers to prescribe the courts/class of court in which the victim can make a statement and the offences to which the right applies.
Between 2003 and 2005, a pilot victim statement scheme was carried out in the Sheriff courts of Ayr, Edinburgh and Kilmarnock and in the High Court at Edinburgh and Kilmarnock. An evaluation of the pilot in 2007, found that the majority of victims who completed the evaluation were glad that they had made a statement and that the take-up rate varied considerably depending upon the severity of the crime (the overall take-up rate was just under 15%, but when individual offences were looked at the rate varied from 60% for murder to nil for some offences). This accorded with reasons given for not making a statement, where 53% of respondents who did not make a statement said they did not feel like a victim or thought that the impact of the crime was not serious.
The pilot led to the Victim Statements (Prescribed Offences) (No.2) (Scotland) Order 2009 and the Victim Statements (Prescribed Courts) (Scotland) Order 2009 which purposely limited victim statements to solemn proceedings and more serious offences.
Section 14 of the 2003 Act also specifies people who can make a victim statement and, in most cases, this is a person who has been the victim of an offence. However in some cases, such as where the victim is deceased or where the victim is a child under the age of 12, another person can make a victim statement – a list of qualifying persons can be found at Section 14 (10) of the 2003 Act.
The list of offences in relation to which a victim is currently given the opportunity to make a victim statement is summarised below (the full list is detailed at Annex A):
- non-sexual crimes of violence (e.g. murder/homicide);
- sexual crimes of violence and indecent crimes (e.g. rape);
- racially motivated crimes;
- certain road traffic offences (causing death by dangerous, careless or inconsiderate driving; or causing death by driving without a licence or without insurance);
- fire-raising; and
- conspiring, inciting, aiding, abetting, counselling or procuring any of the above mentioned crimes.
4. Extending eligibility to make a victim statement
Based on our engagement with stakeholders, including the Crown Office and Procurator Fiscal Service (COPFS), the Scottish Courts and Tribunals Service and Victim Support Scotland, we have identified a list of other offences, which we suggest should carry the right for a victim statement to be made when heard under solemn proceedings. These are as follows:
- Stalking - Section 39 of The Criminal Justice and Licensing (Scotland) Act 2010
- Human trafficking / exploitation and modern slavery - Sections 1, 4 & 5 of The Human Trafficking & Exploitation (Scotland) Act 2015
- Forced marriage - Section 122 of the Anti-Social Behaviour, Crime and Policing Act 2014
- Breach of a forced marriage protection order - Section 9 of the Forced Marriages etc. (Protection and Jurisdiction) (Scotland) Act 2011
- Domestic abuse aggravation - Section 1 of The Abusive Behaviour and Sexual Harm (Scotland) Act 2016
- Intimate image abuse - Section 2 of The Abusive Behaviour and Sexual Harm (Scotland) Act 2016
- Causing serious injury by dangerous driving - Section 1A of the Road Traffic Act 1988
- Causing death by driving while disqualified – Section 3ZC of the Road Traffic Act 1998
- Causing serious injury by driving while disqualified - Section 3ZD of the Road Traffic Act 1998
- Offences aggravated by religious prejudice - Section 74 of The Criminal Justice (Scotland) Act 2003
- Offences aggravated by prejudice relating to disability - Section 1 of the Offences (Aggravation by Prejudice)(Scotland) Act 2009
- Offences aggravated by prejudice relating to sexual orientation or transgender identity - Section 2 of the Offences (Aggravation by Prejudice)(Scotland) Act 2009
- Abusive behaviour towards partner or ex-partner – Section 1 of the Domestic Abuse (Scotland) Act 2018
- Involvement in / directing serious and organised crime - s28/s30 of the Criminal Justice and Licensing (Scotland) Act 2010
We would welcome your views on a number of different options for expanding eligibility to make a victim statement. These options consider both the offences committed and the types of proceedings to which eligibility could be linked.
Option A could be to extend the list of offences for which a victim is currently given the opportunity to make a victim statement to include the offences listed above.
Option B could be for victims to be afforded the opportunity to make a victim statement for all cases heard under solemn proceedings. In practical terms this would mean prescribing that a statement can be made where proceedings in respect of an offence are taken or are likely to be taken in a High Court or sheriff courts sitting as courts of solemn jurisdiction.
A benefit of adopting Option B would be that any new offences that come into force in Scotland that are heard under solemn proceedings would automatically carry the right to make a victim statement, without the need to wait for a periodic review and update of the list of prescribed offences.
Option C could be to consider extending eligibility to all solemn proceedings (as per option B) but also include a list of prescribed offences, such as domestic abuse and stalking that would be eligible for a victim statement, even if they were tried as summary proceedings. This approach would, however, be more complex, take more time to implement and would likely require significant additional resources, compared to options A or B.
A further consideration could be to allow for a victim statement to be made for any offence regardless of the nature of the offence, or court in which it is to be heard. As per option C, this approach would be complex and incur significant resource requirements. The results of the pilot in 2003-2005 also suggest that there is less demand to make a victim statement for less serious crimes. We do not, therefore, propose to pursue this option at this time.
Question 1. Do you have a favoured option for how we could extend eligibility to make a victim statement?
Option A - expanding eligibility to include the list of serious offences at section 4
Option B - expanding eligibility to all cases heard under solemn proceedings
Option C – as per Option B but also including a list of offences which would be eligible for a victim statement even if they were tried as summary proceedings
Please provide a reason for choosing your favoured option.
If you favour option A, are there other offences we should consider adding to the list set out at section 4?
If you favour option C, which offences do you think should be considered for inclusion so they would be eligible for a victim statement even if tried as summary proceedings?
Question 2. To help us decide how to extend the list of current offences for which a victim statement can be made, we need to identify any potential impacts that the changes may have.
Do you envisage any potential implications for you/your organisation if the list of current offences that are eligible to make a victim statement was extended?
If yes, please provide further details of any potential implications you envisage.
5. Other forms of victim statement
A victim statement must currently be completed in writing by the victim and then submitted to COPFS.
During the passage of the 2014 Act, alternative forms of making a statement were considered. For example, pre-recorded video statements which could be helpful for those who may find it difficult to express themselves in writing.
At the time, various concerns were raised by stakeholders about implementing such changes. For example victim support organisations voiced concerns related to the potential emotional impact of making a video on victims themselves, even for those who were initially keen to record a statement.
In response to these concerns, the manner in which statements could be presented wasn’t extended, however provision was included in the 2014 Act to specify by Order the form and manner in which victim statements may be made. The provision also allows for piloting of any proposed changes which could be rolled out more widely should they prove successful.
This consultation provides an opportunity to revisit whether there is now an appetite to explore alternative forms of making a victim statement.
Question 3. Victim statements must currently be made in writing by the victim. Do you think we should look at piloting new ways for victim statements to be made?
If no, please set out your reasons why we shouldn’t look at piloting different ways for victim statements to be made.
If yes, which of the following formats do you think should be explored (please select all that apply)?
- Victims reading their statement in court
- Pre-recording the statement on video
- Pre-recording the statement with audio only
- The judge reading the statement aloud to the court
- Other options (provide details)
Why do you think this option / these options would be beneficial to the victim?
Question 4. To help us decide whether we should pilot news ways for victim statements to be made, we need to identify any potential impacts that any changes may have.
Do you envisage any potential implications for you/your organisation if we were to pilot different ways of victim statement being made?
If yes please provide further details of any potential implications you envisage.
6. Other considerations
We are also seeking views on any other aspects of the current victim statement scheme which you consider could be improved.
For example, from discussions with stakeholders during the development of this consultation we received comments on issues such as: the format and structure of the current victim statement form which the victim is required to complete; the emotional impact on victims of completing the statement; and support that is available to victims to help them do this.
Examples of victim statement schemes in other jurisdictions are provided in Annex B.
Question 5. Are there any other aspects of the current victim statement scheme which you consider could be improved?
If yes, please provide further details of what could be improved.
Another potential issue we are aware of 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 2003 Act).
For example, 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 (we propose adding this offence to the list of victim statement eligibility). This applies where an offence of domestic abuse is committed by a partner towards their partner or ex-partner which includes using the child as an ‘instrument’ of the abuse, the child is present during the abuse or the child is likely to be adversely affected.
In this context, 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.
An amendment to section 14 of the 2003 Act to address these issues would require primary legislation and, as such, it is not something we plan to do alongside changes to the scope of the current scheme. We are interested in views, however, as to whether this is something we should explore in the future to ensure a wider category of victims can be captured by the scheme.
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 2003 Act), 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.
7. Impact assessments
We propose to carry out impact assessments alongside the development of any new legislation which would be required to implement changes to the current victim statement scheme.
These include a Data Protection Impact Assessment and an Equality Impact Assessment (related to the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation). We would be interested in your views on these areas to help us in developing these assessments.
Question 7. Are there any data protection related issues that you feel could arise from the proposals set out in this paper?
If yes please provide further details.
Question 8. Are there any equality related issues that you feel could arise from the proposals set out in this paper?
If yes please provide further details.