Chapter Two: Options to underpin trauma-informed practice and person-centred approaches
Our Vision for Justice in Scotland confirms that our priorities are focused on delivering person-centred and trauma-informed practices across the justice sector, including taking greater action to hear victims' voices.
The work of the Victims Taskforce has emphasised the key importance to victims and witnesses of being heard, accessing information, feeling safe and experiencing compassion.
Existing legal position
The Victims and Witnesses (Scotland) Act 2014 ('the 2014 Act') sets out a range of general principles and rights. The general principles set out in Section 1 and 1A (see Annex A for details), which criminal justice agencies must have regard to, clearly map across to the key issues identified by victims and witnesses.
The 2014 Act also sets out: what a Victims' Code must contain; the requirement for published Standards of Service; and the need for complaints procedures which set the framework for ensuring victims have information about their rights and the standards to expect, and how to complain if these are not met. Existing rights are well summarised in the Victims' Code. The current version of the Standards of Service and annual reports against them can be found in the Standards of Service for Victims and Witnesses - Annual Report.
Our new Vision for a just, safe and resilient Scotland sets out that justice services must be person centred and trauma informed.
It is recognised that victims and witnesses in the criminal justice system can be affected by psychological trauma in many different ways, and that the system itself can be re-traumatising.
In line with other public services in Scotland, there is a need for the criminal justice system to respond to those who come into contact with it in ways that understand and adapt to the impact of that trauma and support recovery. The National Trauma Training Programme sets out further information on the national approach.
The core principles of a trauma-informed approach are safety, choice, collaboration, trustworthiness and empowerment.
In relation to victims of crime, this is in order to ensure that people are treated compassionately and in a way which does as much as possible to avoid re-traumatisation and further harm and which supports recovery. It is also vital to recognise and understand the potential impact of trauma on evidence provided - how evidence is perceived, how it is collected and presented, and how it is responded to and decided upon.
Without this understanding, there is potential that responses to trauma could be misunderstood in a way which does not allow best evidence to be achieved. There is also significant potential that opportunities to minimise trauma and to aid recovery will be missed.
Lady Dorrian's Review states that "the adoption of trauma-informed practices is a central way in which the experience of complainers can be improved" and recommends that a specialist court for sexual offences should use trauma-informed practices and procedure (see Chapter Seven for further discussion on a specialist sexual offences court). It is our view that the benefits of a trauma-informed approach are universal and we are clear that the system as a whole must operate to minimise further trauma or re-traumatisation and aid recovery.
"trauma-informed approaches as standard practice. Recognise and prioritise the person-to-person interactions between victims and witnesses and staff across the criminal justice system. Instil kindness as a practice and develop awareness and application of trauma-informed approaches at all levels."
The Scottish Government, in consultation with the Victims Taskforce, has commissioned NHS Education for Scotland to create a 'Knowledge and Skills' framework specifically to support the development of a trauma-informed workforce in the justice sector.
However, training and the development of a trauma-informed workforce is only one part of what is required to achieve a trauma-informed system. It is key that each of the criminal justice agencies, third sector support organisations and the legal profession consider their operational processes and procedures from a trauma-informed perspective. Action can also be taken on a system-wide basis, for example in relation to communication with victims, access to information and referral to support organisations.
Many within the justice system are already acting to ensure they take account of trauma in their practice, and the development of the 'Knowledge and Skills' framework will advance that approach. For the purposes of this consultation, your views on particular legislative changes which could assist in supporting this necessary shift towards a trauma-informed justice system for victims and witnesses would be welcome.
A number of possible approaches are set out below but further views are also welcome.
Trauma-informed practice: a general principle
One approach could be to introduce the requirement to operate in a trauma-informed manner as a general principle within the relevant legislation. There is a precedent for a legislative reference to trauma-informed care introduced by the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021 in the context of health care.
The most obvious way to take this forward could be to add a reference to trauma-informed practice within the general principles set out in the 2014 Act (see Annex A). There may also be benefit in referring specifically to trauma-informed practice in the requirements to set Standards of Service and report against these.
The 2014 Act applies to the criminal justice agencies, but not to other parties who may have a direct bearing on victims and witnesses' experiences of the justice system. In particular, the way in which a defence is conducted is sometimes highlighted as a traumatising aspect of the process. This consultation seeks views on whether the court should have a duty to take such measures as it thinks appropriate to direct legal professionals to consider a trauma-informed approach in respect of all witnesses, including their clients.
Question 15: Bearing in mind the general principles which are already set out in the 2014 Act, to what extent do you agree or disagree that a specific legislative reference to 'trauma-informed practice' as an additional general principle would be helpful and meaningful?
Please give reasons for your answer.
Question 16: To what extent do you agree or disagree that a specific reference to trauma-informed practice within the current legislative framework for the Standards of Service would be useful and meaningful?
Please give reasons for your answer.
Question 17: To what extent do you agree or disagree that a legislative basis for the production of guidance on taking a trauma-informed approach would be useful and meaningful?
Please give reasons for your answer.
Question 18: To what extent do you agree or disagree that the Court should have a duty to take such measures as it considers appropriate to direct legal professionals to consider a trauma-informed approach in respect of clients and witnesses?
Please give reasons for your answer.
Trauma-informed practice: specific provisions
Another way to consider how legislative change can help to drive trauma-informed practice in relation to victims and witnesses may be to focus on particular elements of current practice which are recognised as being potentially traumatising, and consider legislative change specific to those elements. Some examples are given below, alongside some contextual material which sets out current action being taken to address these issues.
Trauma-informed practice: physical presence in court
Physically appearing in court to give evidence is often one of the most stressful and traumatic stages of the criminal justice system for victims and other vulnerable witnesses. The prospect of being in the same physical environment as the accused and their family members can be overwhelming and create safety concerns. The Transforming Services for Victims and Witnesses report identified the following 'pain points':
- the process of giving evidence is not the opportunity to 'tell their story' that victims often expect
- the process of giving evidence is traumatic and contributes to feelings of being out of control, with victims reporting that this feeling of lack of control is particularly acute at the trial
- the questioning is not as expected in that it often doesn't follow a linear, chronological sequence, which is confusing and can be upsetting
- the length of time that has passed, and the impact of the trauma that victim/survivors have experienced, means that they cannot always recall details
- lack of understanding of the process disempowers those giving evidence
- mistaken expectations that the prosecutor is the 'victim's lawyer' can add to the upset and feeling of being unsupported and marginalised through the process
- the adversarial nature of the process, and the stress experienced by victims and witnesses make it difficult to give 'best evidence'
- the impact of giving evidence can be traumatic, harmful and have long lasting negative effects
A number of legislative provisions and associated changes to practice have been put in place to allow evidence to be given without having to be physically present in court at the same time as the accused. The Scottish Government is now looking to gather views about any further changes that would help develop a more trauma-informed and person-centred way for victims and vulnerable witnesses.
Giving evidence remotely
Child witnesses or witnesses who are 'deemed vulnerable' in law are entitled to give their evidence with the benefit of one or more 'standard special measures'. This includes giving evidence by live TV link either within or outwith the court building. Other witnesses do not have an automatic right to use special measures but prosecutors or the defence can make an application for the court to grant their use on a case by case basis, or the court can do so of its own motion, all where certain criteria are met.
As discussed later in this chapter, the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 ('the 2019 Act') makes further provision in relation to a presumption in favour of the pre-recording of child witnesses' evidence in certain circumstances. The 2019 Act also allows for the extension of this provision to some or all "deemed vulnerable witnesses" so as to allow the pre-recording of a witnesses' evidence in certain circumstances. Legislation sets out the categories of witnesses that are 'deemed vulnerable' which includes complainers in domestic abuse, stalking and sexual offences cases.
Giving evidence remotely by TV link means evidence is given in live time during the trial but the witness does not have to be in the courtroom. This helps to mitigate the anxiety of being in the same physical environment as the accused. Often this is done in another room within the same court building but can also done from another building, which can allow for a more comfortable and supportive experience.
In response to public health guidance during the Covid pandemic, legislative changes were introduced to create more flexibility in court proceedings, including allowing parties who would otherwise have to appear in person at court to 'appear by electronic means'. This has been mainly used for procedural hearings where evidence is not led, as the default presumption within the legislation is that where the hearing is one at which evidence is to be led - such as a criminal trial - attendance in person is required unless otherwise directed by the court.
In May 2021, the Scottish Courts and Tribunals Service (SCTS) initiated a pilot project to test the viability of 'virtual' trials for the delivery of summary business. After the first virtual criminal trials took place in June 2020 to prove the concept, a Virtual Trials National Project Board was established to enable all interested groups to share views and experiences. It includes members of the judiciary, SCTS, Crown Office and Procurator Fiscal Service (COPFS), Law Society of Scotland, Scottish Legal Aid Board and Victim Support Scotland. This led to a continuance of the pilot in June 2021 focusing on domestic abuse cases. This part of the pilot enabled witnesses to give evidence from specifically acquired premises, supported on site by third sector support organisations. This aspect of the pilot has been particularly well received by support organisations in terms of removing victims from the court environment (where many existing remote link provisions are sited) and its re-traumatising impact, and allowing for the direct provision of support on site in more bespoke facilities.
The Project Board's Report on the pilot recommended that virtual trials should be considered as a default position for all domestic abuse cases in the Scottish summary courts with the creation of new designated courts within each sheriffdom to enable this. This was seen as having the dual benefits of improving the experience of victims and witnesses and helping to make greater progress in addressing the backlog of summary trials.
Assumptions regarding the impact on the backlog depend on operational decisions and require further exploration. At this stage anticipated benefits of the recommendation and the wider introduction of the concept are: that - drawing from international experience - virtual models may improve attendance levels; that domestic abuse cases are readily identifiable, therefore, a presumption could apply in a consistent and predictable manner if it were to be introduced; and that creating a dedicated model, as recommended by the Project Board, would have a positive impact on focusing effort both within the court programme and in the community justice response, and provide opportunity for greater specialism and the introduction of trauma-informed training and practices.
The Report suggests that to make the model effective a legislative change is required which would introduce a presumption that physical attendance in domestic abuse cases would no longer be required.
During its Stage 1 scrutiny of the Coronavirus (Recovery and Reform) (Scotland) Bill, the Criminal Justice Committee of the Scottish Parliament heard mixed views on the effectiveness and appropriateness of virtual trials and the attendance by virtual means more generally. As noted above, third sector organisations endorsed the practice for summary domestic abuse cases whilst those in the legal profession raised concerns about the longer term retention of any provisions that supported the use of virtual trials and virtual proceedings more generally. In its Stage 1 report, the Committee recommended that a greater evidence base be developed on the benefits, drawbacks and outcomes of virtual hearings, to inform decisions on a longer-term approach.
The Project Board plans to continue its pilot of the use of virtual summary trials for domestic abuse cases in Aberdeen, while also considering how the model could be developed (through procedural and technological improvements) to further improve the process and the experiences of people taking part in these cases.
The Scottish Government welcomes the extension of the pilot, which will allow more evidence to be gathered on the operation and outcomes of virtual trials. We recognise benefits of the pilot's approach, including reducing the traumatising impact of the court environment, and the enhanced system resilience and flexibility offered by a virtual trial capability, for example where remote geography of parties is an obstacle to timely scheduling.
We are aware that there are differing of views on making virtual trials a permanent feature of our criminal justice system and this consultation seeks to gather further evidence of those views as part of developing a fuller understanding of the potential and challenges of virtual trials.
Question 19: Should virtual summary trials be a permanent feature of the criminal justice system?
Please give reasons for your answer.
Question 20: If you answered yes to the previous question, in what types of criminal cases do you think virtual summary trials should be used?
Please give reasons for your answer.
Question 21: To what extent do you agree or disagree with the recommendation of the Virtual Trials National Project Board that there should be a presumption in favour of virtual trials for all domestic abuse cases in the Scottish summary courts?
Please give reasons for your answer.
Question 22: While removing vulnerable victims from the physical court setting is beneficial in the vast majority of cases, to what extent do you agree or disagree that virtual trials offer additional benefits to the ability to give evidence remotely by live TV link?
Please give reasons for your answer.
Pre-recording of evidence - use of a prior statement and evidence by commissioner
Currently, as noted above, legislation provides that 'deemed vulnerable witnesses', which includes adult complainers of serious sexual offences, are entitled to give their evidence with the use of 'standard special measures'. These are the use of a supporter, giving evidence with the benefit of a screen in court so that the witness cannot see the accused, or giving evidence remotely by live TV link either from another room within the court building or from elsewhere.
The prosecution or defence may also apply for the court to grant the use of non-standard special measures. These include using a prior statement as evidence-in-chief, or giving evidence to a commissioner which is pre-recorded and later played at the trial, which is referred to in this paper as 'giving evidence by commissioner'. These measures can be used separately or together and provide an opportunity to reduce the number of times a witness has to repeat their account, allows their evidence to be captured at an earlier opportunity and prevents the witness from having to attend court.
The use of a prior statement includes an interview or a statement which was taken beforehand, for example: a digitally recorded interview between the witness and the police; a visually recorded interview of a child by a police officer and social worker as part of a child protection investigation (referred to as a 'Joint Investigative Interview'); or a written statement that is read out. The witness's evidence-in-chief can consist entirely of the prior statement, but they would still need to be available for cross-examination.
When giving evidence by commissioner, this happens in advance of the trial and the court will appoint someone to act as the commissioner (the person who will hear the evidence). This will either be a judge or sheriff. The witness will be asked questions in the usual way, including any cross-examination. The evidence is recorded and this is then played to the court.
For adult complainers of serious sexual offences in the High Court, these special measures are not automatic and applications must be made on a case by case basis for a decision by the judge who may require to hear evidence in support of that application.
The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 ('the 2019 Act') created a new rule for child witnesses under 18 to ensure that, where they are due to give evidence in the most serious cases, they will be entitled to have it pre-recorded in advance of the trial (unless an exception applies) usually by the following special measures: giving evidence-in-chief in the form of a 'prior statement' and evidence by commissioner.
In some areas of Scotland, bespoke witness suites are already available which provide a non-court environment for both evidence by commissioner and remote evidence giving and may also allow for support services to be co-located.
Section 3 of the 2019 Act includes powers to extend the rule to deemed vulnerable witnesses, i.e. certain adult witnesses, including complainers of sexual offences. If exercised, this would introduce a statutory presumption in favour of pre-recording evidence of these witnesses. Other categories of witnesses would remain able to apply to have their evidence taken in this way, subject to agreement by the court.
The phased implementation of the 2019 Act is currently predicated on ensuring access for all children first and then extended to include adult vulnerable witnesses, with built in periods of evaluation and analysis. Changes to that approach would have broader implications for the justice system, including the location and current availability of suitable evidence suites, and overall capacity and resourcing.
Pre-recording of evidence - Visual Recorded Interviews (VRIs)
Visually recorded witness statements of adult complainers of rape or attempted rape have been piloted by Police Scotland in three areas across Scotland (Highland and Islands, Dumfries and Galloway, and Edinburgh). These types of statements are known as Visual Recorded Interviews (VRIs).
The Scottish Government has worked closely to support this VRI pilot with partners: Police Scotland, COPFS and Rape Crisis Scotland. Within the pilot areas, Police Scotland visually record the witness statements of adult and 16 and 17 year-old complainers involving allegations of rape and attempted rape.
The aim is that applications are made to the court to have these VRIs admitted in evidence at any subsequent trial as evidence-in-chief and are combined with applications to pre-record any further evidence by commissioner (including the cross-examination). The combination of these measures - VRI and evidence by commissioner - assists in capturing evidence as early as possible and reduces or removes the physical requirement to give evidence at trial.
Since the start of the pilot in November 2019, 302 VRIs have been carried out in respect of 258 cases. Of these cases, 74 have been reported to COPFS and, at the time of publication of this paper, four have proceeded to trial.
Longer time frames involved in investigations and scheduling of solemn proceedings for rape and attempted rape cases have meant that there is an expected time lag between a VRI, proceedings being commenced and a case going to court for trial. This was expected at the start of the pilot and follows the same pattern as such cases where written statements are taken. However, despite the prioritisation of cases of this nature by SCTS, the impact of Covid has been significant, delaying these cases further. It is therefore currently too early to undertake a comprehensive evaluation of the pilot. However, an interim review has indicated very positive feedback from the VRI pilot partners and complainers, albeit limited as it does not yet extend to the completion of these cases under the criminal justice process.
Building on this pilot, Lady Dorrian's Review recommended "that police interviews with complainers in serious sexual offences should be video recorded to capture the evidence of the witness at the earliest possible opportunity and it is noted that this recommendation should be acted upon as soon as possible."
There is therefore consensus that visually recorded police statements of complainers in serious sexual offences (rape or attempted rape) should be available across Scotland. Work is underway to develop implementation plans to scale up the VRI process beyond the pilot areas with particular consideration given to training, infrastructure and capacity to enable the justice system to deliver this. These steps must be taken to ensure that partners can deliver without compromising the integrity of this process.
The scaling up of the VRI process will also require to take into consideration pre-recording of evidence in advance of trial to enable a holistic process for the complainer and to realise the aim of removing or reducing the need to attend court. We are therefore mindful that any changes to the implementation plan for the 2019 Act to extend the categories of witnesses who are eligible under the Act to have their evidence pre-recorded in advance of the trial, should have equal read across to the plans for the VRI process. As part of implementation plans, careful consideration is being given to the evaluation of the level of change that the system can simultaneously accommodate and the necessary investment, alongside the timetabling of when this will be extended to deemed vulnerable adult witnesses in solemn sexual offence cases.
Our view is that the current legislative framework set out in the 2019 Act is sufficient to extend the presumption in favour of pre-recording of evidence through evidence by commission and the use of a prior statement as evidence-in-chief, such as a VRI. The draft implementation plan supports the extension to adult complainers in serious sexual offence cases. There is a recognised need to phase the commencement of the legislation to ensure that the appropriate capacity, facilities and training are in place to ensure outcomes which minimise trauma as much as possible, and to ensure that the intended benefits are delivered, particularly to those involved in the most serious cases, or who are otherwise vulnerable.
Question 23: The existing powers in the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 can be used to expand the categories of witnesses who are eligible under the Act to benefit from the presumption that their evidence be pre-recorded in advance of the trial. This includes evidence by commission and the use of a prior statement as evidence-in-chief, such as a Visually Recorded Interview.
To what extent do you agree or disagree that these existing powers are sufficient to expand the use the pre-recording of evidence of complainers of serious sexual offences?
Please give reasons for your answer, including, if you disagree, what legislative change you consider is necessary.
Trauma-informed practice: Ground Rules Hearings for evidence given in court
The direction of travel set out above highlights the importance of ensuring that evidence can be gathered quickly without waiting for a trial to come to court, with the pre-recording of evidence where this will help to avoid the potential for further traumatisation. As already discussed, where evidence has not been pre-recorded the choice to give evidence in locations outwith the courtroom can also assist in improving the experience for witnesses.
Another aspect that is worthy of further consideration is the use of Ground Rules Hearings (GRHs) in cases where evidence is being given during the trial.
Since 2017, GRHs have been conducted where evidence is sought to be taken on commission from witnesses considered to be vulnerable in accordance with the stipulations set out in High Court of Justiciary Practice Note 1 of 2017; Practice Note 1 of 2019; and section 5 of the 2019 Act which amended the Criminal Procedure (Scotland) Act. One key intention of GRHs is to improve the experience of vulnerable witnesses when giving evidence by commission and thereby reduce the likelihood of re-traumatisation arising from the proceedings.
GRHs bring together the court/commissioner, prosecutors and defence to agree key aspects of how the evidence at commission will be taken including: length of examination-in-chief and, as applicable, cross-examination; scope of the questions asked; and other considerations that may need to be taken into account related to the specific circumstances of the complainer. As the Review notes, experience to date has shown that GRHs have been successful in improving the experience of vulnerable complainers and are working effectively. This confirms the experience in other jurisdictions which has shown them to be effective in improving the experience of vulnerable witnesses by ensuring that cross-examinations are "more witness-friendly, focused, relevant and pared down than in conventional trials", as detailed in the Evidence and Procedure Review: Child and Vulnerable Witnesses Project, Pre-Recorded Further Evidence Work-stream Project Report.
Lady Dorrian's Review recommended that there should be a presumption in favour of the pre-recording of evidence of sexual offence complainers, and that the taking of evidence by commission should be the default approach when conducting a cross-examination of all sexual offence complainers, and used for the whole evidence where police statements have not been recorded in a manner which would allow their use as evidence-in-chief.
However, the Review also recognised that there may be instances in which sexual offence complainers would be required to give evidence in court, and that GRHs should be used in these instances too. This referenced and built upon the earlier work of the judicially-led Evidence and Procedure Review, which recognised the benefits of using GRHs for all children and vulnerable witnesses (not just in sexual offence cases) in the High Court, irrespective of the method in which the evidence is to be provided to the court, and recommended a phased roll out.
Question 24: To what extent do you agree or disagree that Ground Rules Hearings should be extended to all child and vulnerable witnesses required to give evidence in the High Court, irrespective of the method in which their evidence is to be provided to the court?
Please give reasons for your answer.
Trauma-informed practice: court scheduling
Court scheduling and churn - which is when cases do not proceed as planned resulting in repeated hearings before they move on to the next stage - can have a traumatic impact on the experience of those called to give evidence in a case. Court scheduling is complex and there are a range of factors that can cause delay and churn in the progress of criminal cases, not all of which are within the direct control of the courts.
Any delay or uncertainty can have an adverse effect, particularly where the person is due to give evidence physically in court, but also more generally in terms of being unable to move forward with recovery from trauma, as well as the inconvenience and expense associated with multiple rescheduling.
"Cancellation of trial dates is a significant concern. It causes anxiety, feelings of loss of control and loss of confidence in the process."
"Travel arrangements and expenses, getting time off work, waiting in court only to be told that the trial is cancelled, all add to the inconvenience and upset caused by the court process. This experience is reported across all crime types."
Justice Journeys research stated:
"Delays in scheduling court cases, over a period of several months, were cited as a common occurrence and as an especially frustrating and anxiety producing aspect of the process."
HM Inspectorate of Prosecution in Scotland's Thematic Review of the Investigation and Prosecution of Sexual Crimes contains particular feedback on the use of 'floating trials', which are High Court cases where the date and location of the trial can vary depending on court availability.
The current legal position is that the time and place of sittings of the High Court are determined by the Lord Justice General or Lord Justice Clerk in consultation with the Lord Advocate. For summary business the sheriff principal is responsible for ensuring the 'efficient disposal of business' within their sheriffdom. Each is subject to the over-arching responsibility of the Lord President for 'making and maintaining arrangements for securing the efficient disposal of business in the Scottish courts'.
As well as the need to schedule criminal justice business, the courts also need to schedule civil business. In relation to family law, the Family Law Committee of the Scottish Civil Justice Council has been considering proposals on case management in the family court system: see, for example, the discussion in the minute of the meeting of the Family Law Committee on 27 September 2021 (paragraphs 9 to 12).
The independent Advisory Group to the Criminal Justice Board, consisting of stakeholders representing the views of end-users of the system, highlighted the desirability of set staggered time slots (for example 10 am, 12 noon, 2 pm) for witnesses to be adopted across all summary courts and consistency to be ensured. The Group considered that the element of certainty afforded by such a measure was likely to result in a safer and less traumatic experience for witnesses, others attending court and those awaiting the outcome of the trial, and that this outweighed the impact of potentially longer waits introduced by the lack of flexibility.
This example is directly related to the effects of the pandemic and scheduling in that context but highlights the importance of taking the views of those most affected by proposed operational practices into account as part of a trauma-informed, collaborative approach. It also demonstrates that the benefits of efficiency - i.e. greater flexibility allowing more trials to take place - can lead to improved outcomes but can also run counter to providing more certainty and improving the confidence of victims and witnesses in the system.
We recognise and respect the importance of the independence of the Courts and acknowledge that these operational decisions are soundly based and often arrived at in consultation with other justice partners to take account of operational realities elsewhere in the system. The Transforming Services for Victims and Witnesses Report highlighted the need for a multi-agency approach to addressing the ongoing concerns around churn (see page 89 of the Report).
We also recognise, however, that issues around court scheduling highlight how operational practices may require to be reconsidered in terms of achieving an optimum balance between efficiency and flexibility, which remain crucial if the backlog of criminal cases is to be effectively addressed, whilst also preventing re-traumatisation.
While ultimately we recognise that operational matters are a matter for the Courts, we believe it is important that to apply a trauma-informed approach which takes account of the feedback from those most affected. We would be interested in your views as to how this might best be achieved, whether this is through change to the legislative basis for current decision making, or by changes to operating practice and consultative mechanisms, or otherwise.
Question 25: To what extent do you agree or disagree that the current legislative basis for court scheduling, as managed through the existing powers of the Lord President, is sufficient to inform trauma-informed practice?
Please give reasons for your answer. If you disagree, what legislative provision would you like to see?
Trauma-informed practice: information sharing
Difficulties in accessing both general information on rights and case-specific information are frequently cited as contributing to victims and witnesses' poor experiences of the criminal justice system. The way in which information is communicated can also add to distress – whether this is due to dispassionate and complex language, the timing of communication (for example, around a significant anniversary), or too much or too little information which does not take account of the state of mind of the recipient.
The 2014 Act sets out the general principles that "a victim or witness should be able to obtain information about what is happening in the investigation or proceedings" and that "victims should, as far as is reasonably practicable, be able to understand information they are given" (see Annex A for more information on the general principles).
The following sections of the Act also set out specific rights and duties in relation to information:
- 3C – right to request a copy of the Victims' Code and information relating to victims' rights
- 3D – a duty to inform victims that they can request referral to a victim support organisation, or self-refer, and duty to respond to such a request by referring the victim to appropriate providers of victim support services or giving the victim appropriate providers' contact details
- 3E – right to understand and be understood (including ensuring communications are clear and easy to understand, taking account of any personal characteristic which may affect understanding, and allowing assistance to communicate where required)
- 3F – right to interpretation and translation
- 6 – right to information about criminal proceedings (about a decision not to proceed with, or end, a criminal investigation; a decision not to prosecute; the nature of any charges; the arrangements for court hearings, the final decision of a court in a trial or any appeal)
Victims also have the right to information in relation to the release, escape or death of an offender in prison or hospital and can make representations regarding release in certain cases. Further information is available at Victim Notification Schemes - mygov.scot.
Work is being undertaken to revise the approach to communication across the criminal justice system, based on a communications audit and independent research with people who have been affected by crime. Service design approaches have also helped to inform the development of specific third sector support services such as the Support for Families Bereaved by Crime service provided by Victim Support Scotland.
Some specific aspects of information sharing are also being considered in more depth. For example the information available to victim support organisations to enable them to support victims when a prisoner is released is being considered as part of the consultation on bail and release from custody arrangements. An independent review of the Victim Notification Scheme is also underway.
A research project is currently being undertaken on the issues around the management and sharing of data across the criminal justice sector. From the initial research, key problems that impact victims and witnesses have been identified which will be considered further. Part of this work will be user research with victims and witnesses to understand what types of information they need in order to plan a way forward.
The key problems are identified as:
- lack of digital access to information for victims and witnesses about their case, including progress updates, confirming attendance in court, claiming expenses and viewing the statement they gave at the time of the offence
- lack of digital access for organisations supporting victims and witnesses to the full information set needed to allow them to provide the requisite support
- evaluation of how data sharing can be made more flexible and less labour intensive going forward, and to support data sharing happening more widely within the justice partners and with third parties
- the web presence of the sector is confusing and disjointed and leads people to doubt the information and its validity
- organisations acting in isolation in terms of how they engage and present information to victims and witnesses rather than presenting themselves as a unified justice sector
We would be interested to hear your views about any specific legislative changes that could help to address these issues, or other issues you may have experienced in terms of accessing relevant information. We would also be interested in perspectives that would feed into and support the ongoing work described above.
Question 26: Are you aware of any specific legislative changes which would assist in addressing the issues discussed around information sharing? If so, please detail these.
Trauma-informed practice: civil justice
The focus of our work in relation to victims and witnesses is on the criminal justice system. However, the courts also need to work with vulnerable witnesses and parties in the civil justice system. The Vulnerable Witnesses (Scotland) Act 2004 makes provision in relation to civil cases.
The Children (Scotland) Act 2020 introduced special measures to be used to assist vulnerable witnesses and parties in civil proceedings arising out of children's hearings or where the court is considering making an order under section 11 of the Children (Scotland) Act 1995. These provisions are not yet in force. The Family Law Committee of the Scottish Civil Justice Council is currently setting up a sub-committee on implementing the vulnerable witnesses and parties aspects of the 2020 Act.
An issue with the current victims and witnesses legislation is that existing provisions about special measures in the 2004 Act rely on there being 'witnesses' and 'evidence', and a number of civil court hearings are non-evidential, so there are no 'witnesses' or 'evidence'. This consultation is also seeking views on whether changes should be made to victims and witnesses legislation to reflect civil court procedures, which is the topic of Chapter Three.
Question 27: Are there any other matters relating to the options to underpin trauma-informed practice and person-centred approaches in the justice system you would like to offer your views on?
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