Investigation and prosecution of sexual crime: follow-up review
Follow up to HM Inspectorate of Prosecution in Scotland's 2017 review of the investigation and prosecution of sexual crimes
Part 2: Improving communication with victims
69. In our 2017 report, we noted that the nature of sexual crimes, most often committed in the absence of independent witnesses, presents particular evidential challenges. The evidence of the victim is generally critical to the prosecution. While recognition of the need to improve the experience of victims and witnesses in the criminal justice system had resulted in various reforms, evidence persisted that many victims of sexual crime in particular did not feel their needs were at the heart of the criminal justice system. We made six recommendations regarding victims and witnesses.
70. Central to how COPFS communicates with victims is the victim strategy which is carried out for each victim in High Court sexual crime cases. The victim strategy equips those preparing and prosecuting sexual crime cases with essential information about the victim which informs how and when they are contacted about their case, and about what support might be needed to assist the victim during the criminal justice process. The strategy should facilitate the tailoring of information and support to a victim's individual needs.
71. The victim strategy approach was in place at the time of our inspection in 2017, although the underpinning processes were revised in 2018 in response to our recommendations. The strategy has since been revised further (see paragraph 75).
72. In line with the victim strategy, a VIA officer makes initial contact via telephone with each victim and records the information gathered on a victim strategy communication template. The information recorded on this template includes:
- the personal details of the victim
- the date of the initial communication
- the name of the allocated VIA officer
- information about the victim's understanding of the process and likely timescales
- the victim's expectations and how these will be managed by VIA
- an initial assessment of the vulnerability of the victim, including any recommended special measures
- details of any organisation to which the victim has been referred for support
- the victim's preferred method of communication and frequency of contact
- whether the victim would like an early meeting to discuss their case.
73. The timescales for completion of the initial contact vary according to the circumstances of the case. The victim strategy guidance in place at the time of our case review indicated that if an initial decision to take no action is made within four weeks of the police report being received, VIA is not required to complete a victim strategy. Instead responsibility for notifying the victim of the decision rests with the police officer who has previously been in contact with the victim.
74. Making contact with the victim to complete the initial contact is a process which runs in parallel to the court updates provided by VIA. Thus, in cases where the accused has already appeared in court, all victims should have received an update from VIA on the same day with the outcome of the appearance and details of whether there are any bail conditions. If, for any reason, VIA is unable to contact the victim they should ask the police to make personal contact.
75. Shortly before publication of this inspection report, the victim strategy was revised in July 2020. We welcome publication of this updated strategy on contact between COPFS and victims of High Court sexual offences, which usefully sets out its purpose and more clearly states what staff are required to do.
Victims in our case review
76. Victims of sexual offences are deemed to be vulnerable under section 271 of the Criminal Procedure (Scotland) Act 1995. Victims will also have other vulnerabilities or specific needs, in addition to being deemed vulnerable. These vulnerabilities and needs should be identified by COPFS so that the most appropriate measures can be taken to ensure they are supported throughout the criminal justice process. In our case review, there were 15 cases in which the victim was deemed vulnerable due to being the victim of sexual offending, but had no additional vulnerabilities. In relation to the remaining 35 cases:
- in 16 cases, eight of which included at least one child victim, the victim or victims had multiple vulnerabilities. For example, in one case, the victim was a child and had learning difficulties
- in nine cases, the victim(s) were vulnerable because they were children
- in eight cases, the victim(s) had mental health issues
- in one case, the victim had addiction issues
- in one case, the victim was pregnant.
77. Child victims and witnesses under the age of 18 are particularly vulnerable and, as such, it is essential that they are appropriately supported throughout the criminal justice process. From the 50 cases we reviewed, 17 (32%) had child victims. Of the 17 cases:
- nine had one child victim
- six had two child victims
- two had three child victims.
78. In addition, of the 17 cases, five had at least one child victim who was aged 12 or under.
79. Of the 50 cases we reviewed, 14 (28%) had child witnesses who were not the victim. Of the 14 cases:
- eight had one child witness
- five had two child witnesses
- one had five child witnesses.
Recommendations relating to victims
80. In our 2017 thematic review of the investigation and prosecution of sexual crimes, half of our recommendations were aimed at supporting improvement in victims' experience of the criminal justice process. The progress made by COPFS in implementing those recommendations is set out below.
What we found
81. At the time of our inspection, COPFS had made several commitments to victims and prosecution witnesses, including contacting them timeously and providing information when needed, and updating victims on the progress of their case. Contact is made by the VIA service. The VIA service is only offered to victims in certain types of cases, or victims and witnesses who are vulnerable. This includes all victims of sexual crime.
82. In 2017, we assessed whether commitments made by COPFS to victims had been delivered in a review of 50 indicted cases. We found that while VIA had updated victims about significant developments in their case in 93% of the cases we examined, there were significant gaps between contacts from VIA. In a separate sample of 30 cases involving 61 victims where the accused had appeared at court in May 2017 on one or more sexual crime charges, we found that 21% of victims were not contacted by VIA within target timescales and 13% of victims had still not received any contact five months later.
83. We also heard directly from victims and witnesses and the agencies that support them in a series of interviews and focus groups. Lack of communication from COPFS was their main complaint with participants describing long periods of time with no contact. They also described VIA as reactive rather than proactive. Our key finding was that the frequency of contact provided by VIA was not meeting the needs of victims.
What we recommended
84. COPFS should ensure that VIA proactively offer to contact the victim every eight weeks, as a minimum, unless more frequent contact is required or requested or a victim expressly opts out.
85. In response to our recommendation, COPFS introduced a new policy from 1 October 2018 under which VIA offers victims in High Court sexual crime cases the opportunity to be contacted about their case every eight weeks. Victims are also offered the opportunity to be contacted only when there is an update about their case or to opt out of any further contact with VIA. A further revision to the policy in July 2020 makes clear that victims can also request contact more often than every eight weeks. The victim should be asked their preference about frequency of contact at the initial contact stage referred to at paragraph 72 and the victim's wishes should be recorded.
86. Of the 50 cases that we reviewed during our follow-up inspection, nine were reported to COPFS in September 2018, prior to the new policy being implemented. Of the remaining 41 cases, we found evidence in 28 (68%) that frequency of contact had been discussed with the victims and that the victims had been offered contact every eight weeks. In addition, in four of the nine cases reported in September 2018, the new policy had been applied retrospectively and there was a record of the victim's preference regarding frequency of contact.
87. In nine (22%) of the 41 cases, we found no record of frequency of contact having been discussed with the victim and no record of the victim's preference. While some of these cases were reported shortly after the new policy had been introduced and the failure to discuss and record the victim's preferences may have been as a result of the policy being slow to bed in, other cases were reported some months later, when the policy should have been well established. In some of the cases where we found no evidence of the victims receiving a proactive offer of eight weekly contact, there were general issues in relation to communication with the victim, some of which led to circumstances where there was no communication with very vulnerable victims, either at all or for lengthy periods of time.
88. In four (10%) of the 41 cases, there was no need for a discussion with the victim about frequency of contact. In three cases, this was because a decision to take no action was made within approximately four weeks from receipt of the police report and the responsibility for conveying the outcome to the victim fell to the police rather than VIA. In the fourth case, a decision was made to refer the case to the Children's Reporter within four weeks and, again, the police were responsible for notifying the victim.
89. In four cases where the victim had requested eight weekly contact, we found evidence of a failure to comply with the victims wishes:
- in one case, there was a period of no contact for 12 weeks
- in one case, there was a period of no contact for 13 weeks
- in one case, there were two periods of no contact – one of 13 weeks and one of 23 weeks
- in one case, the initial victim strategy was completed timeously and, after the first eight weeks, the victim did receive communication from VIA. However, there was no further attempt at communication until 23 weeks later. At this stage, VIA was unable to contact the victim by telephone and police were asked to obtain the victim's up-to-date contact information. This information was promptly provided by the police, but not acted upon for eight weeks when the case preparer asked VIA to make contact with the victim again.
90. We discussed the frequency of contact between VIA and victims with various organisations providing support to victims. Their views were mixed. While some felt there had been an improvement since our thematic report in 2017, others felt awareness of the possibility of eight weekly contact was low. Some also said that where an attempt at eight weekly contact was made by VIA but the victim not available, they felt the onus shifted to the victim to return the call rather than VIA trying to make contact again.
91. Victims can choose to opt out of eight weekly contact and instead request that VIA make contact only when there is an update about their case. In our case review, we noted that significant periods of time can pass between updates on cases and we were not confident that victims were aware of this possibility when opting out of more frequent contact. For example, in two cases that we reviewed, there were periods of five and eight months where there was no evidence of VIA contact with the victim where the victims had opted to be contacted only when there was an update about the case. Had victims known that several months might pass before they heard from VIA, we wondered whether they might have opted for more frequent contact instead. When presenting options to victims, VIA officers should ensure that victims are aware of the potential timescales so that victims can make an informed choice.
92. While we welcome this new approach to offering eight weekly contact to victims, we noted that the offer is not always made timeously. The offer should be made when the victim strategy is commenced and initial contact is made with victims. The timescales for commencing the victim strategy are:
- in cases marked for petition:
- where the accused is in custody, within seven days of them being fully committed
- where the accused is on bail, within 21 days of them being committed for further examination
- in other cases, such as those where further enquiries or pre-petition investigation is required, timescales are dependent on progress of those enquiries or investigation.
93. There appears to have been some dubiety in the guidance about when the victim strategy should be commenced in cases where an initial decision about the case is delayed (Chart 5 at paragraph 179 shows the timescales for initial decision making in the cases we reviewed). This dubiety may have explained some, but not all, of the delays we noted in commencing the victim strategy.
94. In a significant proportion of the cases that we reviewed, there were delays in initial contact being made with the victim and VIA establishing the victim's wishes regarding frequency of contact. The following examples illustrate this point, but are not an exhaustive list of where we noted delays:
- in two cases, the initial decision was taken on the same date that the case was reported by police in circumstances where the initial contact should have been completed within 21 days. In the first case, the initial victim strategy was not completed until over 15 weeks from the date of the police report. In the second case, VIA had not made any attempt to carry out the initial contact until a support agency requested an update for the victim, approximately five months after the police report
- in one case, there was a delay of nine months in the initial decision being made and no VIA contact with the victim until 10 months after the case was reported
- in one case, the initial decision was taken approximately four weeks after the police report was submitted. The initial decision was that the case required a four-week period of further enquiries, which was then extended. The initial contact with the victim was not completed until 13 weeks after the police reported the case
- in another case where the initial decision was that a four-week period of further enquiries was needed and enquiries were not completed on time, VIA did not get involved in the case until the accused had appeared in court and was committed for further examination. Despite the two victims being children, initial contact was not carried out until 16 weeks after submission of the police report
- in a case with five victims, different victims were reported in relation to the same accused at different times and the cases were consolidated. The initial contact was not completed for over three months following receipt of the police report for one of the victims.
95. From these cases, it can be seen that delays in initiating communication occurred when initial decisions about the case were delayed. However, delays in contacting the victim also occurred where there were clear target dates for doing so. In many (although not all) of these cases involving an initial delay, once contact was established with the victim and the victim strategy carried out, communication was thereafter satisfactory.
96. Any delays in communication with victims are disappointing, but particularly so at the outset of a case. Effective communication from the start of a case is essential to building the confidence and trust of victims and to securing their engagement in the process. COPFS should ensure that appropriate processes and sufficient resources are in place to ensure that the victim strategy is initiated timeously. There should be a set period of time following the police report at which initial contact will be made with all victims, regardless of the procedural history and status of their cases. COPFS should give some consideration, in consultation with victim support organisations, to what length of time is reasonable.
New recommendation 1
COPFS should ensure that the victim strategy is initiated within a reasonable time in all cases, regardless of their procedural history and status.
97. In summary, a new policy regarding frequency of contact between VIA and victims was implemented in October 2018 in response to Recommendation 7, which we welcome. We also welcome the clarification added in July 2020 that a victim can opt for contact more often than every eight weeks, if they choose. Our case review has shown that this policy change has resulted in a better standard of communication with many victims, including contact which is more frequent and which is in line with the victim's own preference. However, in too many cases, we noted either a failure to carry out the victim strategy and to establish the victim's wishes regarding contact, or gaps in contact. These gaps were often at the start of the case, when there was a delay in initiating contact, or we noted gaps after contact had begun which meant the frequency of contact was below what was requested by the victim. For this reason, Recommendation 7 has not yet been fully achieved. COPFS has indicated that it is monitoring compliance with the victim strategy, which will allow it to assess when implementation is being consistently achieved.
Recommendation 7 status: in progress
What we found
98. In our interviews and focus groups with victims and witnesses and the agencies that support them, we heard that having a dedicated VIA officer to provide continuity in communication was highly valued. We found that there was geographic variation within VIA as to whether staff were dedicated to individual cases.
What we recommended
99. COPFS should ensure that there is a dedicated VIA officer allocated to each case and provide victims with information on who to contact in their absence.
100. In response to our recommendation, COPFS sought to phase in the practice of allocating a dedicated VIA officer to each High Court sexual crime case from 1 October 2018. In our case review, we checked to see which of the 50 cases had a dedicated VIA officer, and whether it was that person who consistently made contact with the victim. We did not, however, expect that contact would be made by the dedicated VIA officer on every occasion as sometimes a time-sensitive update will need to be given to the victim when, for example, their dedicated officer is on leave.
101. In four of the 50 cases that we reviewed, there was no need for a dedicated VIA officer to be allocated to the case. This was because an early decision on whether and how to proceed was communicated to the victim by the police. Of the remaining 46 cases:
- in 37 (80%) cases, there was a dedicated VIA officer who consistently made contact with the victim
- in five (11%) cases, there was a dedicated VIA officer but contact was not consistently made by that person
- in two (4%) cases, there was a dedicated VIA officer, however the dedicated officer appeared to change over the course of proceedings and contact was not consistently made by that person
- in two (4%) cases, there did not appear to be a dedicated VIA officer. No contact was made with the victim at all and instead the police were asked to notify the victim of the decision to take no action, 11 weeks after the cases had been reported.
102. We were pleased to note that in some cases where the dedicated VIA officer was going to be on leave or otherwise absent, this was communicated to the victim and an alternative point of contact was provided.
103. While there remains scope for further improvement, the findings from our case review show that significant progress has been made in securing more consistent communication with victims. Our findings are supported by feedback from victim support organisations who noted that consistency in who is making contact from VIA has generally improved. We therefore consider Recommendation 8 to have been achieved.
Recommendation 8 status: achieved
What we found
104. We found that it was common for victims not to understand that VIA is part of COPFS. This resulted in some saying they had not received any communication from COPFS when they had, in fact, been in contact with VIA.
What we recommended
105. COPFS should consider rebranding VIA to include a reference to 'prosecution' in their title.
106. Further discussion on Recommendation 9 took place between the inspectorate and COPFS following the publication of our report in 2017. It was recognised that rebranding VIA would have implications beyond sexual crime and consideration was given to achieving the desired outcome by other means. COPFS established a working group comprised of representatives from various units within the service to consider the issue further. It was concluded that the desired outcome, that victims understand that VIA is part of COPFS, could be achieved if VIA staff changed how they introduced themselves to victims and how they described their role, making it clear they were making contact on behalf of COPFS. Guidance was issued to VIA staff and training packages were updated to reflect this new approach. In discussions with some victim organisations, we heard that victims tended to talk about their contact with 'the Crown' or 'the Procurator Fiscal' rather than VIA, suggesting increasing awareness that VIA is part of COPFS.
Recommendation 9 status: achieved
What we found
107. Another of the commitments that COPFS had made to victims and prosecution witnesses was to communicate with them clearly and effectively. However, we found that clear communication was hampered by an unrealistic expectation on the part of COPFS regarding victim and witnesses' understanding of the prosecution process and how the criminal justice system operates. We heard that VIA often used legal jargon and terminology which is not widely understood by the general public. We also heard that some communication was overly complex and noted that there was sometimes a failure to tailor communication to the needs of individuals, including those with learning difficulties. We were also concerned that some communication was insufficiently empathetic.
What we recommended
108. COPFS should review all correspondence sent out by VIA.
109. Following our inspection, COPFS reviewed, equality impact assessed and revised the template letters it uses in correspondence with victims in High Court cases. This review began in 2018 and the views of support organisations were sought which we welcome. The majority of the revised template letters were made available to staff for use in March 2019. Efforts were made to improve the clarity of the letters and COPFS has indicated that the templates will be kept under review and amended to reflect changes in policy and practice.
110. We consider Recommendation 10 to have been achieved. We regard improving communication with victims to be a continuous endeavour for COPFS and an area that we will continue to assess in all our inspection activity. We encourage those working with victims to provide feedback to COPFS regarding the quality and effectiveness of its correspondence and for COPFS to take any necessary action in response.
Recommendation 10 status: achieved
What we found
111. A key commitment made by COPFS to victims and prosecution witnesses was that it would identify vulnerabilities and obtain appropriate special measures. This is key to helping victims and witnesses give their best evidence and is particularly important in cases involving sexual crime where the evidence of the victim is almost always essential to the prosecution.
112. The Victims and Witnesses (Scotland) Act 2014 was in force at the time of our inspection. Our report was published in 2017 and the later Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 had not yet been enacted. The 2014 Act redefined the categories of person that were to be regarded as vulnerable witnesses – referred to as 'deemed vulnerable' – to include all victims of sexual offences, as well as other categories such as children under the age of 18, amongst others. A deemed vulnerable witness was automatically entitled to the use of standard special measures while giving evidence, while other special measures may have been allowed if the court was satisfied they were justified.
113. Identifying appropriate special measures for victims of sexual crime is a key responsibility of VIA. We noted that the use of special measures was discussed by VIA as part of its initial call to victims and then followed up in its introductory letter. The letter provides a link to information about special measures and advises that if VIA does not hear from the victim, it will apply for the use of screens and a supporter from the Witness Service. We also noted that special measures were discussed again during the victim's interview with the case preparer.
114. Based on feedback from victims and witnesses and the agencies that support them, as well as evidence from our own case review, we found that asking the victim to engage proactively on special measures at the beginning of the case being investigated by COPFS was premature. We heard that, at this stage, victims were often overwhelmed with information, did not fully understand the special measures or the process generally, and often changed their minds at a later date as to the measures to used. Victims also preferred a face-to-face discussion about special measures. It would therefore make sense to focus on special measures during the victim's interview with the case preparer, rather than at the very start of their case. This would allow victims to make a more informed choice as the trial approached, and would reduce the risk of changes being made.
What we recommended
115. COPFS should discuss and agree special measures at the interview with the case preparer in the context of preparing the victim or witness for court.
116. In response to our recommendation, COPFS sought to phase in the practice of discussing and agreeing special measures with victims in High Court sexual crime cases at their interview with the case preparer from 1 October 2018. While a VIA officer will have a general discussion of special measures with the victim at the time the victim strategy is carried out, this will generally be focused on raising the victim's awareness that such support measures exist. The victim is not expected to choose which special measures they would like at this stage, although they may indicate a preference if they wish. When the victim later meets face-to-face with the case preparer, they should have a general understanding of special measures and, following discussion with the case preparer, be better placed to make a decision about the measures best suited to them.
117. We heard from victim support organisations that this approach of discussing special measures at a later stage is beneficial as victims may be more likely to have begun receiving support if it has been sought and are thus more likely to have discussed their options with their support worker prior to making a decision.
118. Consideration of the most appropriate special measures will be required in cases where court proceedings have commenced and the victim's evidence is required. There may also be some circumstances where a discussion with victims and witnesses about measures that are available to support them should take place where court proceedings have not yet commenced, such as where the witness is reluctant to engage in the criminal justice process. Awareness of support measures available to them at that stage may facilitate their engagement.
119. In our case review, petition proceedings were commenced in 35 of the 50 cases. In 20 of the 35 cases, the case preparer had recorded that a discussion of special measures had taken place at a face-to-face meeting with the victim. In a further three cases, there were appropriate reasons why a face-to-face meeting did not take place and instead a discussion about special measures took place in a telephone call between VIA and the victims or their parents (this included cases where the victim declined to meet the case preparer and where the victims did not reside in Scotland).
120. In the remaining 12 cases, there was either:
- no note of any meeting between the victim and the case preparer (10 cases)
- no mention of special measures in the record of the meeting (one case)
- a note that the special measures had already been discussed with VIA (one case).
121. This suggests that face-to-face meetings with case preparers are not routinely taking place as they should be, or that case preparers are not recording the outcome of their discussions.
122. We consider that a face-to-face meeting at which special measures are discussed is beneficial for the majority of victims. We also recognise that such a meeting may not be appropriate for some victims, such as those who do not desire it. While the required policy change has been made in response to our recommendation, we do not consider that the results of our case review show that sufficient change has yet been implemented in practice. We recognise that as the policy change becomes more established, compliance should improve however this should be monitored by COPFS. We noted that several of the cases in our review that were non-compliant involved child victims. It is possible that there may be a view among some staff that face-to-face meetings with child victims may not be helpful, however such meetings should take place with their parents or guardians, either with or without the child present depending on what is in their best interests. In circumstances where face-to-face meetings do not take place, a record should be kept of the reason why.
Recommendation 11 status: in progress
What we found
123. We heard from victims and witnesses and the agencies that support them about challenges they faced giving their best evidence in court. Many said they were concerned about the possibility of seeing the accused and his or her entourage at court. Others said they did not feel fully prepared for the hostile and intrusive nature of questioning at trial, describing the experience as degrading. We also heard about the lengthy time taken for cases to get to trial, the use of floating trial diets, and trials being repeatedly adjourned or transferred to other courts at short notice – these factors often affected the victim or witness's confidence and ability to give their best evidence.
124. Victims also told us about what helped them during court proceedings. This included meeting the trial prosecutor prior to the trial and afterwards so they could explain the outcome, and having access to an advocate or supporter.
125. We stated that the time, effort and resource invested in investigating and preparing cases for court, arranging special measures and engaging with victims and witnesses is wasted if they are unable to give their best evidence or if they disengage at the last moment. We noted the importance of all agencies working together to address victims' concerns and minimise the impact of giving evidence and the need for COPFS to do what it can to help victims and witnesses to have the confidence to take part in court proceedings.
126. We said that there are a suite of practical measures which, if implemented, can diminish the fear and trepidation of the unknown and assist victims and witnesses to give their best evidence. These include:
- a court familiarisation visit
- having access to their statement
- meeting with the trial prosecutor, preferably before the day of the trial
- a plan to avoid seeing the accused at court, including agreed entrance and departure arrangements
- provision of a dedicated supporter – whether advocacy worker or Witness Service
- provision of chosen special measures
- agreement on how the verdict will be communicated.
What we recommended
127. COPFS should ensure that a court management strategy is agreed with every victim and relevant agencies following service of the indictment as part of the Victim Strategy.
128. Following publication of our report in 2017, the inspectorate and COPFS met to discuss implementation of Recommendation 12. The inspectorate stated that victims in High Court sexual offences should have a clear understanding of the specific support measures to which they are entitled. Support measures should be set out in a single written communication shortly after the indictment is served, which should be followed up with more detailed discussion by telephone. COPFS should keep a record of the measures agreed for each victim and there should be a clear audit trail demonstrating when measures were offered and what arrangements were agreed.
129. In response to our recommendation, COPFS published Operational Instruction 15 of 2020 in July 2020 which set out a new court management strategy. It states that, when a High Court indictment is served, a template letter will be sent to the victim clearly setting out the support measures to which they are entitled. These include:
- before the trial, they can visit the court building where they will give evidence
- before the trial, they can read the witness statement that they gave to the police
- before they give evidence they can, where possible, meet the prosecutor who will conduct the trial
- VIA can apply to the court for special measures to assist them when giving evidence
- if possible, VIA can make arrangements so that they can go in and out of the court building using a different entrance from other members of the public
- after they have given evidence, VIA will contact them to tell them the result of the trial.
130. The Operational Instruction states that each of these measures should be discussed in detail with the victim at the appropriate stage of the case. Under the policy, VIA officers are required to keep the court management strategy section of the victim strategy template up to date with a record of discussions and actions regarding each measure, thus ensuring an audit trail is in place. The policy also requires the VIA officer to liaise with any relevant agencies who are supporting the victim.
131. We welcome the introduction of the court management strategy. Given the date of its introduction, we were not able to test its application in our case review however we are content that, if implemented as instructed, Recommendation 12 will be achieved. We will consider implementation of the court management strategy in any relevant future inspections and encourage COPFS to monitor its use and to seek feedback from victims and the organisations that work with them on whether the strategy contributes to improvements in victims' experience of the criminal justice process.
Recommendation 12 status: achieved
132. During our follow-up inspection, as well as gathering evidence to help us assess whether our recommendations had been implemented, we noted additional issues relating to how COPFS communicates with victims and victims' experiences of the criminal justice process generally. Some of these issues arose during our case review, while others arose from discussions with stakeholders.
133. In our review of 50 cases, we assessed whether the level of communication with victims by COPFS was satisfactory. In making this assessment, we considered the extent to which the victim strategy had been complied with, the frequency of communication with victims, and any evidence which provided an indication about the quality of the communication. We did not observe communication with victims in real-time but instead relied on what was recorded about communication in case files. VIA staff are required to maintain a record of all contact with victims and so case file analysis should provide a good indication of the level of communication between COPFS and victims. Although compliance with the victim strategy timescales outlined at paragraphs 89 and 94 was a factor that we took into account when assessing communication, failure to strictly adhere to these timescales did not mean that a case was automatically assessed as unsatisfactory as the frequency and quality of communication throughout the life of the case was considered.
134. Overall, we assessed that communication was satisfactory in 25 (50%) cases and unsatisfactory in 25 (50%) cases. In cases which were satisfactory, the victim strategy was carried out timeously and effectively, with a dedicated VIA officer communicating with victims in accordance with their preferences. We noted some instances where communication was particularly effective. For example, in one case with multiple charges, a decision was taken early on not to proceed with the most serious charge but investigation of other charges continued. Rather than waiting until a final decision was made regarding all charges, the victim was kept informed throughout and offered the opportunity to discuss the decision regarding the most serious charge with a prosecutor. Other examples of effective communication and support include cases where:
- the victim strategy was commenced earlier than required due to concerns about the vulnerability of the victim
- correspondence was carefully tailored to each victim in a complex case with multiple complainers
- thought was given to the timing of correspondence so as not to cause the victim unnecessary additional stress while she was taking exams
- VIA staff explored with the victim what assistance might be needed to support their continued engagement in the criminal justice process
- victims were referred to third sector organisations that could provide additional support and, in one case, a referral was followed up by VIA when the organisation had not initially responded to the victim.
135. Where we assessed communication as being unsatisfactory, this was mostly due to there being either no or delayed communication. In one case, incorrect information was given to a child victim's family about the use of pre-recorded interviews and staff failed to explain that even if the child's interview was admitted as their evidence in chief, the child may still have to be cross examined by the defence.
136. Where communication was unsatisfactory, it was not necessarily so throughout the life of the case but we felt any inadequacies were sufficient to merit an overall assessment of unsatisfactory. In addition to delays in initial contact being made and gaps in communication highlighted at paragraphs 89 and 94, there were recurring themes in our assessments which COPFS may wish to consider further in improving its approach to victim communication. These included:
- process failures which result in delayed contact with victims
- delays in communication where the case does not follow the standard process due to some form of procedural complication
- opportunities to improve communication with victims who are looked after children.
Process failures resulting in delays
137. A recurring theme we noted in cases we assessed as being unsatisfactory was a failure in process which resulted either in delays in communication with the victim, or the victim strategy initial contact not being carried out at all. In two cases, the process failure related to system reminders to carry out the victim strategy not being set or being missed. In six cases, the template used to record the outcome of the victim strategy initial contact was not completed. Failure to record this information may result in COPFS not ascertaining or complying with the victim's preferences regarding contact, and may hinder the gathering of necessary information regarding any vulnerabilities and the need for special measures.
138. In two cases, process failures relating to the case generally had an impact on communication with the victim. The cases are discussed at paragraph 61. In one case, the process failure resulted in no communication for nine months until the victim contacted COPFS for an update, and in the other, there was no communication with the victim for over eight months.
Communication in cases with complex procedural histories
139. We noted that communication could be improved in some cases which had a particularly complex or non-standard procedural history.
140. For example, in one case, the victim was involved in several cases against multiple accused, the circumstances of which were connected. Only one of these cases was in the sample of cases we reviewed. Given the complexity of the cases, COPFS focused on the case which was the strongest evidentially. This resulted in the case in our sample not being taken forward pending the outcome of another case and no victim strategy being completed in respect of its particular circumstances. While VIA was in regular contact with the victim about the progress of one of the other cases in which she was a victim, it was not clear to us that she was also being updated on the case in our sample or that the VIA officer providing updates about individual cases had strategic oversight of all the connected cases. While a victim strategy should have been commenced in relation to the victim regarding each individual case, an overarching strategy covering all cases in which the victim was involved may have been beneficial from the victim's perspective.
141. In another case, reports against the same accused involving five victims were received at different times and were ultimately consolidated. Communication with three of the five victims was satisfactory. A victim strategy was significantly delayed for the fourth victim and, for the fifth victim, the victim strategy template was not completed and so all necessary information about the victim and their wishes was not gathered.
142. Procedurally complex cases, such as those where multiple victims are reported in respect of the same accused at different times, appear more likely to result in errors regarding victim communication. These cases should be closely monitored and scrutinised to ensure that each victim receives an appropriate level of service.
Communication with looked after children
143. In two cases involving child victims who were looked after away from home, we noted scope for improvement in communication. Both cases involved communication issues already highlighted elsewhere, such as delays in carrying out the victim strategy. Both cases also featured difficulties in COPFS making contact with the victims. In one, this was because the child had moved care placements while a decision about the case was being made. In neither case did it appear that the children's social workers were contacted to assist in tracing the children. This should have assisted in contact with these child victims being established more promptly, by ensuring that COPFS was aware of the children's current residence and the most appropriate adults to whom correspondence should be sent.
144. In neither case did it appear as though the police had provided details of the local authority by which the child was looked after, or details of the child's social worker. Not only would this information have made tracing the children easier, but where a local authority has parental rights and responsibilities for the child, it should be kept informed of the status of the child's case so that it can discharge its duties effectively. For example, the local authority may have wished to assist the child in exercising their right to review of a decision to take no action against the accused. Moreover, ensuring the child's social worker was made aware of the information being communicated to the child by COPFS would have created an opportunity for the social worker to ensure that the child received the information in a manner most appropriate to their needs, and that appropriate support was in place. The two cases we reviewed involving looked after children suggested to us that COPFS, working with the police, should consider whether their victim communication policies and processes fully take account of the circumstances of looked after children, many of whom will be the most vulnerable in our communities.
New recommendation 2
COPFS should work with the police to ensure that processes for communicating with victims and witnesses who are looked after children take account of their individual circumstances and needs.
Police victim strategy
145. To support COPFS to carry out its own victim strategy, the police are required to submit a police victim strategy for each victim within seven days of reporting any High Court sexual crime case. Submission of the police victim strategy should be monitored by COPFS and reminders sent to the reporting officer if necessary. At a strategic level, there is an opportunity for COPFS to provide feedback to Police Scotland on compliance at their joint Sexual Crime Board.
146. The purpose of the police victim strategy is to highlight to COPFS information about the victim's background and any vulnerabilities, their attitude towards criminal proceedings and their understanding of the criminal justice process, and their expectations regarding the case. This information can be used to inform decision making by COPFS and its own victim strategy. It is therefore disappointing that in our case review, a police victim strategy had been submitted in only 18 (36%) cases and no strategy was submitted in 32 (64%) cases. Many of the cases in which no strategy was submitted included charges of rape, and it should have been clear to the reporting officer that the case would be dealt with at High Court level and would therefore require submission of a police victim strategy.
New recommendation 3
COPFS should work with Police Scotland to ensure that a police victim strategy is submitted in all appropriate cases and in accordance with agreed timescales.
Feedback from victim support organisations
147. During our follow-up inspection, we sought feedback from organisations providing support to victims. While some of their feedback was mixed, they generally noted improvements in communication between COPFS and victims since 2017. They also commented on a commitment to engaging with their organisation and improving the experience of victims in the criminal justice system at a strategic level within COPFS. At an operational level, the relationship between victim support workers and VIA staff had improved and the sharing of contact information for individual staff had made it easier for support workers to contact the appropriate person about a case.
148. In addition to issues already highlighted above, the areas which victim support organisations identified for improvement were often ones previously noted in our 2017 inspection report and included:
- challenges in accessing previous statements before giving evidence in court, with some victims still not being made aware that this is possible
- no opportunity to meet the prosecutor in their case before trial in too many cases, often resulting in the victim not understanding key decisions or legal strategies
- ineffective arrangements for how victims are informed of the verdict in their case
- VIA not asking a victim whether they have an advocacy worker and the victim then experiencing difficulties in having a Witness Service supporter replaced by their advocacy worker with whom they already have a relationship
- a lack of support for victims about whom section 275 applications had been made
- geographic inconsistencies in the service provided to victims by VIA with victim support workers in some parts of Scotland being far more positive about the service than others.
149. Some of these issues should be addressed by effective implementation of the court management strategy introduced in July 2020 and described at paragraphs 128 to 130.
150. A significant development since our inspection in 2017 has been the introduction of a Memorandum of Understanding between COPFS and Rape Crisis Scotland which governs the provision of feedback from victims of sexual crime to COPFS about their experience of the criminal justice process. The purpose of the feedback is to support COPFS in making improvements to the service provided to victims of sexual crime. Feedback can be provided anonymously, and in respect of all victims of sexual crime, regardless of the outcome of their case once it is reported to COPFS. Feedback is submitted monthly by Rape Crisis Scotland and has resulted in practice changes.
151. The evidence outlined above shows that while several improvements have been made in how COPFS communicates with victims of serious sexual crime and, indeed, we have assessed that four of our previous recommendations regarding victims have been achieved and two are in progress, there remains scope for further improvement. This is needed not only in how COPFS communicates with victims, but across the broader criminal justice system so as to improve victims' overall experience.
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