Domestic abuse court experiences - perspectives of victims and witnesses: research findings
This research reports on 22 victims’ and witnesses’ experiences of court (including children and young people) since the introduction of the Domestic Abuse (Scotland) Act 2018 in April 2019.
4. Pre-Court and preparation for court
- In most cases in this study, the period between first reporting domestic abuse and the case being heard at court was lengthy and characterised by a lack of communication about case progress, minimal support and associated anxiety.
- During this pre-trial period many victims and witnesses in this study reported continued abuse or harassment from perpetrators, undermining their sense of safety.
- Changes to custody arrangements and bail conditions further impacted on victims' and witnesses' sense of safety. Such changes were not always communicated to victims effectively or in a timely manner. Several participants were not informed that the accused had been granted bail and only realised when the accused subjected them to further threats or harm.
- There was a lack of effective communication with victims and witnesses about which charges were being brought and why.
- Several parents and children felt they had been wrongly led to believe that a video recorded/ joint investigative interview would mean that a child would not be required to give evidence in court. When this turned out not to be the case, it became a source of distress and undermined trust in the process.
- Specialist support and advocacy was highly valued during this period. Workers supported participants to prepare for court, set expectations and discuss the range of special measures available. These services were valued for support with communication to Victim Information Advice/Crown Office and Procurator Fiscal Service about witnesses' needs/views in relation to special measures and NHOs. Many participants noted that access to support or advocacy at an earlier stage would have made a significant and positive difference to their wellbeing.
In this section we report on participants' experiences of preparing for court. The period between victims initial contact with police (through providing statements or other evidence gathering activities) and a case being heard at court varied significantly in length. As noted earlier in the report, these timescales are likely to have been exacerbated by the COVID-19 pandemic. Across the 19 cases where details were known, the mean length of time between first reporting and a final court hearing was 9.6 months. For nine participants this process spanned over a year. For most participants, this period was characterised by poor communication and uncertainty over case progress; a lack of access to therapeutic support; and themselves and those in their close networks being subject to ongoing threats and abuse. We explore in more detail the impact that court preparation had on victims and witnesses.
Delays were substantial and represented one of the most difficult aspects of the process for adult and child participants. Participants reported multiple phases of anticipating and preparing for court dates, as dates were often cancelled and rescheduled at short notice. One adult provides a typical example of the disruption and distress this caused:
I think the court dates got changed, oh, I lost count it was so many … I definitely found that extremely hard, because, you know, first of all you're planning your days off work, you're then mentally trying to prepare yourself. My family, my mum and my stepdad live down south. They travelled up one of the occasions, and then for them to get here, to be then told, oh, court's not going ahead now. So, the inconsistencies of it all, was extremely stressful. (Adult 3)
Although a small number of interviewees were able to put thoughts of their court case to one side, most participants described their lives being 'put on hold' in the lead up to court, with little opportunity to process or move beyond experiences of abuse.
Interviewees recognised several reasons for delays including the context of COVID-19 which was felt to have significantly exacerbated the issue. In many cases there was little clarity about the reasons for such delays and rescheduling of hearings, as explained by an adult:
It was always the Procurator Fiscal and his lawyer, delayed it for whatever their reasons were. It was just delayed all the time. (Adult 3)
Delays left participants feeling exposed and vulnerable, with several reporting a view that the court process was used by the accused to continue to assert control. This is typified by one adult where she describes how the accused's repeated failure to attend court acted to protract the legal process:
I think I was quite wary because it had gone on that long. We were meant to go to court before, but he would never turn up. So, we would get warrants out for him. So, it constantly went on and on and on. (Adult 11)
Difficulties for participants were compounded by COVID-19 'lockdowns'. They reported being isolated from support from schools and extended families, and co-parenting arrangements breaking down. One adult describes the stress caused by lockdown combined with the uncertainity about the court process and the eventual outcome:
It was quite stressful. I think it was during lockdown.[My son] was just like dead anxious and stressful not sure what's going to happen, not, I didn't know what was going to happen. I think I was just fearful [his Dad] was going to get the jail, like get imprisoned. I don't know why I was worried about that. I don't know. (Adult 7)
Protection and safety
For many participants, the period of preparing for court was reported as a time where risk, threats and abuse continued. While remand brought some degree of physical safety, the temporary nature of these arrangements meant it was seen as a reprieve from abuse rather than a solution. There were mixed views about whether bail conditions improved participants' sense of safety. For a small number, bail conditions were described as preventing further threats or abuse. However, for most they afforded a more limited sense of safety, as exemplified in the exchange between the interviewer and adult participant:
Interviewer - Did you feel reassured by [the bail conditions]?
Respondent - Yes and no, 'cause he's…he doesn't care about the law at all. So, I think always constantly had it in my mind that he's going to come. (Adult 11)
For other participants it appeared that the risk intensified between charging and court proceedings, describing how reporting to police fuelled the accused's anger towards them and their families.
It was a mix [of feelings], to be honest [when I found out charges would be brought]. I was glad because I thought, well, they've obviously believed me, so thank God for that, and at the same time I was like... what they [the police] don't realise is how difficult that is. Like you just know for a fact the minute he finds out about that like he's going to be absolutely fizzing. And if [the court/police] don't put conditions in place like he's coming for you, do you know what I mean? And all you can think about is your weans. (Adult 6)
The efficacy of bail conditions were also limited by circumstances such as child contact arrangements and the employment or living arrangements of the accused; all of which potentially brought the accused into proximity with victims and witnesses.
When they released him, they said that he's released on bail under the condition that he doesn't approach you, doesn't come into your street itself. But because he works like half a mile away from me at the time, they couldn't stop him being in the area. (Adult 6)
As this quote illustrates, many interviewees felt bail conditions didn't adequately address the risks they faced and that the police had limited powers to protect them from the accused between initial reports and court proceedings. Several victims' and witnesses' described dealing with ongoing and explicit threats to their own or family members' safety while awaiting decisions about court.
Some felt that the police often minimised or overlooked the risks at this time. This was noted to be particularly pertinent when abuse was emotional or conducted online, as noted by one victim:
They've said, 'Look, try and get this in proportion, he might be saying this online, but you're physically safe and try and block it out. Try not to let this get to you.' But it's still…it does, you can't just stop it getting to you. (Adult 2)
Examples where police had failed to inform participants in a timely manner about bail being granted intensified their sense of risk, anxiety and being 'kept in the dark.' As one adult victim stated:
Eventually the police sergeant phoned me the following afternoon to tell me that he'd been released on bail, and he was released about an hour ago to two hours ago, and, if I'm in the house, make sure I get out, because he'll be there any minute. (Adult 1)
Victims' and witnesses' actions to protect self and family
In some cases participants felt the onus was on them to protect themselves, even when police were aware of risks. This is exemplified by an adult:
I should be able to go out and walk through the park at night on my own without being worried that my husband's going to come up beside me. You know, it shouldn't be up to me to keep safe, it should be up to [the police] to protect everyone, and I was like, that's what was getting me… You're not keeping me safe. You're telling me how to keep myself safe, but I'm asking your help to keep him away from me, and it wasn't happening. (Adult 1)
In these circumstances, participants felt a lack of understanding from police about the dynamics of abuse and the nature of the ongoing risks they faced.
Young complainants in this study were females who were under 18 when the abuse from a partner began; they described a lack of consideration for their age-related vulnerabilities and their need for safeguarding. This included two cases where a perpetrator was significantly older and the victims described how these men had targeted them; one young person felt her previous contact with police as a teenager meant they saw her as 'trouble' when she reported. There is some evidence that recognition of 16 and 17 year olds rights as children in need of protection may have been overlooked. This is exemplified by one complainant:
I was only 16. He was a grown man going about telling … 'Oh my bird's 16/17'. And then … I said that to the social worker and even the social worker…they were saying, that is obviously grooming. I'm like, but why can the police not see that? It's as if they're just pure trying to look past that. (Young Complainant 1)
Alongside delays and concerns raised about safety and bail conditions, the majority of child and adult interviewees expressed anxiety due to uncertainty about the court process and a lack of information or opportunity to ask questions. This is exemplified by one young complainant:
When I first found out about court, I think I just went like, 'Oh no!' to be quite honest. … I think it was just that constant worry…'What's going to happen or how's it going to happen?' 'Who's going to be there?' Things like that, 'Who's going to be watching me?' 'What if I said the wrong things?' (Young Complainant 3)
As a result, victims and witnesses often lacked a sense of control and felt disempowered by the process. Interviewees gave examples of mistakes with names and addresses in communication about the court process, or letters being sent to old addresses, which added to individuals' sense of being lost in a system. As one adult explains:
I've got citations with wrong names, wrong addresses, my name spelled wrong. Every single citation, whether it's mine or the witness's, pretty much names are still wrong. (Adult 1)
While opportunities for contact with advocacy, witness information services and victim support all provided some opportunity to address questions and concerns, the quality of information and its timelines appeared to vary depending on available services and individual cases. This quotation from an adult typified this:
I had to keep phoning ... because nobody was bothered, like nobody was contacting us and I was, like, I feel so unprepared. I feel unprepared. Reading the court document, I just feel that we don't know anything about what we've to do, we don't know anything about … (Adult 12)
Victims and witnesses reported receiving formal citations through several routes including: handed to them by police; via letter or text message; or (in the case of a child) a request to attend a police station to pick up the citation. In most cases the citation preceded court specific support and this heightened victims and witnesses' fears. As a young complainant described:
I had letters through my door saying that I was to go to court, and I think I was just…I was really nervous about it. And I think sometimes I couldn't sleep just thinking about it the next day. (Young Complainant 2)
For children's citations, three interrelated issues were raised: timing, expectations, and control. In the accounts shared in this study, children appeared to be cited particularly close to court dates, resulting in minimal time to prepare. One adult victim explained:
I'd been in email and phone contact with the Victim Information team to say, 'Look, we haven't received this from the police, is [my daughter] definitely being cited? Because she needed to know and there's all this information on the website about preparing for court.' And if you're a child …you might get a court visit or you might get a video walkthrough or something like this. But because she didn't know if she was going or not, nobody was asking us if we wanted any of this. (Adult 12)
Several children (and their parents) believed that they would be able to participate in a video-recorded interview, rather than testifying in court. Thus citations to children, to attend court, were particularly unexpected and sources of anxiety for both children and adult victims. As one child explained:
I think the only thing that was really bad was they told us we most likely wouldn't have to give a statement again or go to court. And then a year later, we found out, like, we had to do it. (Child 4)
In several cases, parents did not want their children to be cited. Of these cases, two parents wanted to withdraw from their case to protect their children from having to attend court but were prevented from doing so. One of these parents described the process:
I knew I would have to testify; I'd built myself up for that. I said I don't care about me; I just don't want [my daughter] to have to go through everything that she's already been through ... But obviously it's a legal obligation, she absolutely had to. We got told that when we picked [the citation] up, like she absolutely has to go. If you don't bring her then we have to arrest you… that's what that woman told me at the police station. (Adult 6)
One 11 year old boy described changing his mind about wanting to engage with the legal process after undertaking a joint investigative interview. After re-establishing a relationship with his Dad, he no longer wished to give evidence in court, leaving both him and his mum feeling trapped in a legal process over which they had little control. He explained this:
I was told I might have to go to court, but I just … I wasn't going … I just, I didn't want to go… then my mum tried to text them. Like my mum texted them and said I just really didn't want to go. (Child 2)
Support and advocacy
Victims and witnesses identified significant support needs during this period, relating to both their interdependent emotional wellbeing and advocacy needs. Individuals with access to a specialist advocacy and support worker, noted the value of practical and informational support, and of these workers providing a conduit between the courts, COPFS and victims and witnesses. As one adult victim explained:
The EDDAC worker talked me through it all and they talked me through what the courtroom would look like and stuff. So, they were really clear with me. (Adult 10)
Participants reported that these workers fulfilled a vital role by: explaining what to expect; arranging transport and expenses; supporting their understanding of options for special measures; liaising with VIA about their preferences for special measures and ensuring prosecutors were informed of their views on Non Harrassment Orders (NHOs) should the accused be convicted; and providing emotional support on the day of court (see next section). Their experience and knowledge of the justice system was invaluable to individuals navigating these processes for the first time, as one adult victim described:
I had no idea what to expect, to be honest, because I've never really had to do anything like that before, so I don't think anybody can prepare you for that, to be honest, … But the preparation for it – I mean [my Women's Aid worker] as well as ASSIST – I had a lady from ASSIST, she was fantastic. She fought tooth and nail to make sure she knew every last detail about it. See if it wasn't for ASSIST, I wouldn't have known a thing. (Adult 6)
For all individuals whether supported by an advocacy worker or not, communication with prosecutors was via the COPFS Victim Information and Advice service (VIA). Two individuals spoke of valuing VIA but both noted its limited capacity and scope, as described here:
I've spoken to them [VIA], but you don't get an individual caseworker, …it's like everyone shares the case, so although they've all been very helpful, there's some things which you've maybe said to one person, the following week that's maybe not been noted, and then there's certain people you can open up to more than you can to others. (Adult 1)
In other cases, participants described additional support provided via the Witness Support service. Similarly, this was noted to have limited scope and was mainly accessed on the day of court – rather than in the lead up to the process. One adult victim, for example, spoke of this:
I think one of the big gaps that was there was see the preparing for court aspect? Told I was getting a witness supporter, and then I asked, and they just said, you'll go up, you'll give your evidence, then the defence'll ask you questions. (Adult 2)
Options and advocacy for special measures
In the lead up to, and preparation for court, finding out about and negotiating special measures was incredibly important to interviewees. As a 13-year-old child described:
The police were trying to get me to, like, actually go into court, and not give evidence by commission[er]. And my mum kind of told them, like, 'If you make her go to court, I'm just going to drop all the charges, because I don't want to put her through that.' Because, like, giving a statement put me in, like, a really bad place, and stuff, and really messed with my head, so she didn't want me having to go through all that again. (Child 4)
Despite the fact that all domestic abuse and child witnesses are automatically entitled to standard special measures (and non-standard special measures can be applied for in certain circumstances), victims and witnesses consistently reported uncertainty and anxiety about the special measures which would/could be provided, and their sufficiency to maximise their sense of safety in court . All those going to court expressed a need for additional support arrangements such as separate court entrances, which weren't always available (some thought due to COVID, others limits of the court building) and separate waiting rooms which most often included court witness support (see next chapter). Interviewees reported varied practice in relation to special measures when giving evidence, depending on the court and the nature of charges. The most discussed examples of standard special measures were of screens and for some participants, in particular children, a court supporter. It was felt that remote livelink was rarely put forward as an option available to adult victims, rather this was something a victim/witness had to proactively seek. Support workers and advocacy workers were noted to play a role in supporting victims and witnesses understanding of the range of special measures and in some cases helping them liaise with VIA to request specific standard special measures:
I then had to ask the person at Women's Aid, I think she got in touch with the actual courts [COPFS] herself on my behalf and asked about, if I could get a screen or a video link, so I don't actually have to face my husband … I was told, 'We'll look into it, it's not normally something you'd get, because it's normally done for more serious crimes.' (Adult 1)
Children and parents reported perceptions of a more proactive approach taken in arranging special measures for child victims and witnesses, remote live link seemed to be a genuine and available option for children as well as screens, seemingly dependent on age although participants were not clear on this . Examples were shared of Procurator Fiscals proactively encouraging victims to use special measures, in particular screens, which was often appreciated. However, as one young complainant describes, this was not always in line with victim preferences:
They were asking me if I wanted a screen, and I said to them … I was like, no because if I have a screen, he's not going to be able to see my … I want him to see my face and I want to be able to see him, so then his true reactions will come out. (Young Complainant 1)
However, special measures were not a panacea for victims' and witnesses' fears about court appearances. In some cases, the nature of special measures brought their own anxieties and loss of control. Another young complainant described such concerns:
I knew that I would be in a room, and it would be, like, a FaceTime call through to the other room where he could see me - but I wouldn't be able to see him. And I think that just made me really nervous knowing that he's going to be able to see me, 'cause I didn't want him to. (Young Complainant 2)
Advocacy and support to child witnesses
In the period prior to court, interviewees reported similar support needs for both child and adult victims and witnesses. This included: regular, timely and clear communication about forthcoming court process; opportunities to ask questions; a sense of choice in aspects of the process wherever possible; and access to support from a named individual who they could get to know prior to court. Across those interviewed, these needs were only partially met. This quotation from a child exemplifies the lack of information about going to court:
I knew [when I went to court] I had to say something to somebody, but I didn't really know about it that much. (Child 1)
Several children and parents noted that, where available, specialist child support and advocacy was only accessible to them shortly prior to court – sometimes accessed for the first time in the week before first attending. There was a perception that this was related to the late notice of some children's citations. This is exemplified by one child's description:
And then, we found out that they were making me go in and make evidence by commission, and then that's when we started speaking with [ASSIST Worker]. But I think they gave us quite, like, short notice, like, and stuff, like I think I should have got longer with [ASSIST Worker] than what I did. But in the short time that I had, it was really beneficial. (Child 4)
When children did receive access to specialist support (either via domestic abuse court advocacy services or Women's Aid), it was highly valued and noted to help with children's understanding of the process ahead. One child explains:
I knew about [court] from ASSIST way before that. Which was good 'cause it was, like, a, sort of … 'It's not as bad as you think it'll be, you'll go there and you'll do this, this is, like, what will happen.' 'He's going to court on this day. They'll probably send it to trial. Like, this is where it is. This is what it looks like.' (Child 5)
The potential for children to have both pre court visits and, or a known supporter on the day of being at court was reported to as helpful in reducing fear and anxiety. The management of children's expectations about the process was also noted to be a key role of advocacy or support workers.
[My ASSIST worker] made sure that I wasn't, not like in a good way, but knowing that I wasn't expecting too much. Because he asked, like, 'How long [in prison] do you want [the accused] to get,' and I was like telling him, and he was like, 'There's mostly likely a chance he probably won't, but this is what will happen if he does, and how, like, if he gets out, what we can do from there,' and things like that. (Child 4)
However, despite these provisions there was recognition that there were inherent difficulties for children in giving evidence about domestic abuse that involved their parents. One adult spoke strongly about this:
They were saying like, 'Oh well bring him down, he can have a look about the court room and make him feel comfortable.' And I'm like, but it's not really about that, do you know what I mean? It's more the fact that it's his dad [that he has to testify against]. (Adult 7)
Ways Forward from participants' perspectives
Reduce delays and the number of adjournments that victims' and witnesses' experience; improve communication about decisions.
Take action to improve victims' and witnesses' sense of safety in the period leading up to the trial, including clear communication about restrictions on the accused.
Provide clearer communication about the process and next steps, particularly in relation to child witnesses.
Increase access to support and advocacy, with provision to begin earlier.
Increase attention to the vulnerability and needs of younger victims.
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