Independent legal representation and the victims, witnesses, and justice reform (Scotland) bill: A review of potential models of delivery

Footnotes

1 Hereafter referred to as ‘the Bill’.

2 See e.g. “Free Legal Advice Pilot for Complainers in Rape and Attempted Rape Cases”, Scottish Legal News, 4 April 2025; COPFS’ Victim Information and Advice Service; Rape Crisis Scotland’s National Advocacy Service.

3 Hereafter referred to as ‘ILR’.

4 As per s.64 of the Victims, Witnesses, and Justice Reform (Scotland) Bill. See too ss. 274 and 275 of the Criminal Procedure (Scotland) Act 1995. The Criminal Procedure (Scotland) Act 1995 is hereafter referred to as ‘the 1995 Act’.

5 In this respect see also S Cowan, EPH Keane and VE Munro, The Use of Sexual History Evidence and ‘Sensitive Private Data’ in Scottish Rape and Attempted Rape Trials (2024).

6 By which is meant any witness who gives evidence in relation to a matter that is specified on a docket to an indictment or complaint in a sexual offences case by virtue of s.288BA of the 1995 Act.

7 We outline our methodological approach to addressing this question in detail in chapter 2.

8 For a more detailed analysis of the development of the law and legal practice in this area, see Cowan, Keane and Munro (n 5)24-36.

9 See inter alia Lord Carloway’s comments on the purpose of the legislation and the twin myths in CJM (No 2) v HM Advocate [2013] HCJAC 22, 2013 SLT 380 at [12].

10 Moir v HM Advocate [2007] HCJAC 20, 2007 SCCR 159.

11 As per XY v HM Advocate [2022] HCJAC 2, 2022 JC 82 at [44].

12 “In very general terms relevant evidence may be said to be evidence which is logically connected with those matters in dispute between the parties, the facta probanda, which are under investigation by the court.”: ML Ross, J Chalmers and I Callander, Walker and Walker: The Law of Evidence in Scotland, 5th edn (2020) para 1.3.1.

13 In Brady v HM Advocate 1986 JC 68 at [73] the court noted that “[v]arious justifications have been put forward for this rule. The existence of a collateral fact does not render more probable the existence of the fact in issue; at best a collateral matter can only have an indirect bearing on the matter in issue; a jury may become confused by having to consider collateral matters and may have their attention diverted from the true matter in issue.”

14 See e.g. LL v HM Advocate [2018] HCJAC 35, 2018 JC 182.

15 LL v HM Advocate [2018] HCJAC 35, 2018 JC 182 at [14].

16 See inter alia CH v HM Advocate [2020] HCJAC 43, 2021 JC 45; CJM (No 2) v HM Advocate [2013] HCJAC 22, 2013 SLT 380.

17 DS v HM Advocate [2007] UKPC D1, 2007 SC (PC) 1 at [28].

18 This comma does not appear in the statute but was read into the provision as necessary so as to avoid an undue restriction on the accused's right to a fair trial in terms of Article 6(1) of the European Convention on Human Rights in line with s.3 of the Human Rights Act 1998 as per Lord Hope in DS v HM Advocate [2007] UKPC D1, 2007 SC (PC) 1 at [47].

19 This part of the test is effectively redundant given that the evidence in question must first be deemed relevant and admissible at common law prior to considering the operation of the statutory provisions.

20 As per s.275(1)(a)(b) & (c) of the 1995 Act.

21 The categorisation of the three tests that follows mirrors that outlined by one of the co-authors of this report (Eamon Keane), in an earlier report co-authored with Tony Convery: see EPH Keane and TConvery, Proposal for Independent Legal Representation for Complainers where an Application is Made to Lead Evidence of their Sexual History and Character (2020) 11–12 .

22 1995 Act, s.275(2)(b)(i).

23 1995 Act, s.275(3).

24 RR v HM Advocate [2021] HCJAC 21; RR, Petitioner 2021 JC 167.

25 See s.288BA of the 1995 Act and HM Advocate v Moynihan [2018] HCJAC 43.

26 See Cowan, Keane and Munro (n 5) 16 and 94.

27 Scottish Courts and Tribunals Service, Improving the Management of Sexual Offence Cases: Final Report from the Lord Justice Clerk’s Review Group (2021). This review is known as the “Dorrian Review”, as it was led by Lady Dorrian, Scotland’s second most senior judge, and is subsequently referred to by this title in this report. See also Keane and Convery(n21) .

28 See Dorrian Review, paras 4.34-4.45.

29 See Victims, Witnesses, and Justice Reform (Scotland) Bill: Policy Memorandum, paras 491-493.

30 The Bill, s.64(2) (inserting a new s.275(4A) into the 1995 Act).

31 The Bill, s.64(5) (inserting a new s.74(1A) into the 1995 Act).

32 The Bill, s.64(2) (inserting a new s.275(4B) into the 1995 Act).

33 The Bill, s.64(2) (inserting a new s.275(4D) into the 1995 Act).

34 Dorrian Review, paras 1.1-1.8.

35 See the Dorrian Review, para 1.2: “The indication given to the Review Group was that 75% of the work of the Crown Office and Procurator Fiscal Service (COPFS) consists of sexual offences of one kind or another. The vast majority of High Court trials which now proceed relate to sexual offending.” The high volume of sexual offence prosecutions and concerns about capacity to deal with these has led in the past to increased governmental funding for some criminal justice stakeholders: see e.g. Jenni Davidson, “Crown Office to take on extra staff following funding increase” (Holyrood Magazine, 28 August 2018).

36 Dorrian Review, Terms of Reference, 140.

37 Faculty of Advocates, Response to the Victims, Witnesses, and Justice Reform (Scotland) Bill (2023) 9.

38 Law Society of Scotland, Response to the Victims, Witnesses, and Justice Reform (Scotland) Bill (2023) Q8.

39 Senators of the College of Justice, Response to the Victims, Witnesses, and Justice Reform (Scotland) Bill (2023) 9.

40 COPFS, Submissions to the Criminal Justice Committee – Victims, Witnesses, and Justice Reform (Scotland) Bill (2023) para 70.

41 Scottish Courts and Tribunals Service, Response to the Victims, Witnesses, and Justice Reforms (Scotland) Bill (2023) Q8.

42 See e.g. Law Society of Scotland (n 38) question 8; Scottish Courts and Tribunals Service (n 41) Q8; Senators of the College of Justice (n 39) 13.

43 See e.g. Scottish Courts and Tribunals Service (n 41) Q8; COPFS (n 40) paras 77-82.

44 See e.g. Law Society of Scotland (n 38) Q8.

45 See section 2.3.

46 For an explanation of the choice of these three jurisdictions and the exclusion of others, see section 3.2.1. The Australian Law Reform Commission has recommended that ILR for sensitive records applications be extended to all Australian states and territories: see Australian Law Reform Commission, Final Report: Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence (ALRC Report 143, 2025) recommendation 9.

47 In England and Wales, the Law Commission has recommended that ILR be introduced for both of these types of application: Law Commission, Evidence in Sexual Offences Prosecutions (Law Com CP No 259, 2023) para 8.183. In Northern Ireland, a consultation is underway in this respect: Northern Ireland Executive Department of Justice, Consultation on Proposals for Inclusion in a Victims and Witnesses of Crime Bill (2024).

48 See further section 2.2.

49 See section 2.2.

50 See section 2.3.

51 See Law Commission (n 47) para 8.183.

52 T O’Malley, Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences (2020) para 6.39.

53 Northern Ireland Executive Department of Justice (n 47). The closing date for responses was 20 February 2025.

54 Australian jurisdictions differ in the terminology used for sexual offences. Some jurisdictions (such as Victoria and Queensland) have a specific offence of rape. Others do not (such as New South Wales where sexual intercourse without consent is termed “sexual assault”).

55 Australian Government, National Plan to End Violence against Women and Children 2022–2032 (2022). See specifically the commitment made to provide “$8.4 million for greater access to specialised and trauma-informed services for victim-survivors of sexual violence through a pilot of a new legal service model for victim-survivors of sexual assault” in Australian Government, First Action Plan 2023-2027 Activities Addendum, 55.

56 Australian Government, Attorney-General’s Department, Supporting victims and survivors of sexual violence - piloting new legal services models, media release, 20 September 2023.

57 Government of South Australia Attorney-General’s Department, Scoping the Development of Specialised and Trauma-Informed Legal Services for Victims and Survivors of Sexual Assault (2023) 6.

58 Australian Law Reform Commission (n 46) recommendation 9.

59 Australian Law Reform Commission (n 46) para 6.86.

60 Australian Law Reform Commission (n 46) para 6.87. For further discussion of their rationale, see paras 6.86-6.90.

61 Australian Law Reform Commission (n 46) recommendation 9.

62 Victims of Crime Act 2001, s.16(3)(b). The power is discussed further in T Kirchengast, M Iliadis and M O’Connell, “Development of the Office of Commissioner of Victims’ Rights as an appropriate response to improving the experiences of victims in the criminal justice system: integrity, access and justice for victims of crime” (2019) 45 Monash University Law Review 1 at 7-9.

63 Kirchengast, Iliadis and O’Connell (n 62) at 22; M O’Connell, “Improving access to justice: procedural justice through legal counsel for victims of crime”, in J Joseph and S Jergenson (eds) An International Perspective on Contemporary Developments in Victimology, A Festschrift in Honor of Marc Groenhuijsen (Springer Switzerland, 2020) 213.

64 See M O’Connell (Commissioner for Victims’ Rights, South Australia), Victims’ Rights: Integrating Victims in Criminal Proceedings (2011).

O’Connell provides several case studies of intervention but none of them relate specifically to our context. The closest is an intervention in relation to the defence wanting to access the contents of an adolescent complainer’s laptop – see case F at 9.

65 Ibid 9.

66 Evidence Act 1929, s.67F(6)(c) (South Australia).

67 Government of South Australia, Attorney-General’s Department, Review of Sexual Consent Laws in South Australia: Discussion Paper (2023) 34.

68 Government of South Australia, Attorney-General’s Department (n 57). As has already been noted, the Australian Law Reform Commission has recommended change for all Australian states and territories: Australian Law Reform Commission (n 46) recommendation 9.

69 Criminal Code s.278.4(2)-(2.1) (Canada).

70 Criminal Code s.278.94(2)-(3).

71 The process is therefore a two-stage one, as noted in e.g. R v GG 2023 PESC 16 at [14] and R v Crawford 2025 BCAA 17 at [36]. An overview of the procedure written for survivors has been published by the Journey Project: Journey Project, “Special procedures and O’Connor applications in sexual assault trials: a guide for survivors”.

72 Criminal Code s.278.4(1) (personal records) and s.278.94(1) (sexual behaviour evidence).

73 Criminal Code s.278.4(2) (personal records, listing other persons who are so entitled) and s.278.94(2) (sexual behaviour evidence). The Code requires that a hearing be held. Case law on the provisions regularly notes written submissions having been provided to the court in addition to oral argument: see e.g. R v KT 2020 ONCJ 496 at [12]; R v GG 2023 PESC 16 at [7]; R v NK 2022 NSSC 84 at [60].

74 K Bellehumeur, "Systemic discrimination against female sexual violence victims” (2023) 11 Canadian Journal of Human Rights 131 at 144. See also K Bellehumeur, “A former Crown’s vision for empowering survivors of sexual violence” (2020) 37 Windsor Yearbook of Access to Justice 1.

75 Criminal Code s.278.3(5).

[75] Criminal Code s.278.4(2)-(3).

[75] Criminal Code s.278.4(5)

76 Criminal Code s.278.4(2.1).

[76] Criminal Code s.278.4(2)-(3).

[76] Criminal Code s.278.4(2.1)

77 S McDonald and others, Bill C-46: Records Applications Post-Mills, A Caselaw Review (2004) section 4.8. See also E Craig, Putting Trials on Trial (2021) 135-166.

78 Report of the Coordinating Committee of Senior Officials Working Group on Access to Justice for Adult Victims of Sexual Assault (2018) para 5.4.5.

79 According to a statement by Police Victim Services of BC: “With funding from the Government of Canada through the Department of Justice Canada, CLAS is contracted by the Ministry to provide free independent legal advice to survivors of sexual assault”. See Police Victim Services of BC, “Independent Legal Advice for Survivors of Sexual Assault”, 2 Nov 2023.

80 CBC News, “B.C. non-profit now offering free legal advice to sexual assault survivors”, 17 Oct 2023.

81 This description of the system, including the quoted text, is taken from Community Legal Assistance Society, Stand Informed.

82 Nova Scotia, Independent Legal Advice for Adult Survivors of Sexual Assault, [accessed 2 Jul 2024]. Participants must be 16 years or older and the assault must have occurred in Nova Scotia. Lawyers can contact Nova Scotia Victim Services to request that they are added to the roster of lawyers providing this service. A short informational video.

83 Nova Scotia Justice, Accountability Report 2022–23 (2023) 4 (table 1).

84 For context, the population of Nova Scotia in 2023 was 1,058,694: Nova Scotia Economics and Statistics Department, Nova Scotia Annual Population Estimates as of July 1, 2023 (2024).

85 Nova Scotia Justice, Accountability Report 2022–23 (2023).

86 See Staff Lawyer Position – Sexual Offence Legal Representation Program (SOLR) – Halifax.

87 Law Commission (n 47) para 8.13, citing Civil Procedure Rules rr 17.5(3) and 17.5(4) and R (TB) v The Combined Court at Stafford [2006] EWHC 1645 (Admin). “Subject” here includes both the record holder and the person who is the subject of the records.

88 See Law Commission (n 47) para 3.63.

89 Ibid para 8.137.

90 Ibid para 8.157. The Commission made further provisional proposals regarding the detail of advice and representation, including representation in court for certain issues being determined pre-trial or during a trial in the absence of the jury, access to documents and engagement with police, prosecutors and defence counsel: paras 8.159-8.162.

91 Ibid para 8.16.

92 O Smith and E Daly, Final Report: Evaluation of the Sexual Violence Complainants’ Advocate Scheme (2020) 12.

93 See ibid 36. The support that advisers were able to give for ABE interviews was also restricted part-way through the pilot.

94 Ibid 11.

95 Ibid 11.

96 Ibid 44.

97 Representing approximately 6% of eligible cases reported to the police during that period: ibid 38.

98 Ibid 7. Most of the complainants who quickly disengaged “did so because they decided not to proceed with the police complaint”: ibid.

99 Ibid.

100 Ibid.

101 House of Commons Home Affairs Committee, Investigation and Prosecution of Rape (HC 193, 2022) 55. The Law Commission noted that a Ministry of Justice consultation on the provision of legal advice to complainants in sexual offence cases concluded in June 2022 and that its outcome was awaited: Law Commission (n 47) para 8.22.

102 N Vickers, “Free legal advice for rape victims starts – mayor”, BBC News, 18 June 2024.

103 Mayor of London, PCD 1538 Sexual Violence Legal Advice Pilot (2023).

104 By virtue of the Criminal Law (Rape) Act 1981 s.4A.

105 In terms of the Criminal Law (Sexual Offences) Act 2006 and the Criminal Law (Sexual Offences) Act 1993.

106 See the Criminal Law (Sexual Offences and Human Trafficking) Act 2024 s.6.

107 Criminal Law (Rape) Act 1981 s.4A(2).

108 Criminal Law (Rape) Act 1981 s.4A(3).

109 Criminal Law (Rape) Act 1981 s.4A as amended by s.7 of the Criminal Law (Sexual Offences and Human Trafficking) Act 2024.

110 Criminal Law (Rape) Act 1981 ss. 4A(4) and (5).

111 See s.26(3A) of the Civil Legal Aid Act 1995.

112 M Iliadis, “Victim representation for sexual history evidence in Ireland: a step towards or away from meeting victims’ procedural justice needs?” (2020) 20 Criminology & Criminal Justice 416.

113 O’Malley (n 52) para 5.14.

114 Ibid 84.

115 See Iliadis (n 112)

116 S Leahy, The Realities of Rape Trials in Ireland: Perspectives from Practice (2021) 25.

117 Ibid 26.

118 Keane and Convery (n 21) 24.

119 Criminal Procedure Act 1986 ss.299A and 299C. A “protected confidence” is defined by s.296(1) as a “counselling communication that is made by to or about a victim or alleged victim of a sexual assault offence”. Communications can be from “any person who has undertaken study or has experience that is relevant to the processing of counselling persons who have suffered harm” (s.296(4)). This might include, for example, financial counsellors, health professionals, school professionals or social workers. See Judicial Commission of New South Wales, Sexual Assault Trials Handbook (2020) para 9-100.

120 Criminal Procedure Act 1986 s.298(1).

121 Criminal Procedure Act 1986 s.299D. For example, consideration of the need to encourage victims of sexual offences to receive counselling; whether disclosure might damage the relationship between the counsellor and the counselled person; and the public interest in ensuring victims of sexual offences receive effective counselling.

122 Criminal Procedure Act 1986 s.299C(3).

123 Criminal Procedure Act 1986 s.299C(4).

124 Criminal Procedure Act 1986 s.299C(5).

125 Criminal Procedure Act 1986 s.299.

126 Criminal Procedure Act 1986 s.294CB(4)(a).

127 T Kirchengast, “Victim legal representation and the adversarial criminal trial: a critical analysis of third-party counsel for complainants of serious sexual violence” (2021) 25 International Journal of Evidence and Proof 53 at 65.

128 Judicial Commission of New South Wales, Sexual Assault Trials Handbook (2020) para 9-600.

129 Legal Aid New South Wales, Sexual Assault Communications Privilege Service (2021).

130 This may arise, for example, where Legal Aid is already representing the defendant in the case.

131 See Legal Aid New South Wales, “Sexual Assault Communications Privilege Service”.

132 Sexual Assault Communications Privilege Service, Subpoena Survival Guide (2016).

133 Legal Profession Uniform Law Application Act 2014 (NSW).

134 Attorney-General’s Department, Scoping the Development of Specialised and Trauma-Informed Legal Services for Victims and Survivors of Sexual Assault (2023).

135 Law Society of New South Wales, Letter to the Law Council of Australia: Developing Legal Services for Victims and Survivors of Sexual Assault (2023).

136 For context, the population of New South Wales is 8,484,400: Australian Bureau of Statistics, National, State and Territory Population (2024).

137 Sir John Gillen, Gillen Review: Report into the Law and Procedures in Serious Sexual Offences Cases in Northern Ireland (2019). Subsequently “Gillen Review”.

138 We note that the Gillen Review does not clearly distinguish advice and representation within the overall terminology of “separate legal representation”.

139 Gillen Review, 13.

140 Ibid 166.

141 Ibid 167.

142 See ss. 11-16.

143 Part IV, s.28.

144 Gillen Review, 16-19.

145 See Pre-Trial Matters, s.6.

146 Practice Direction 2/2019, s.6.16.

147 Parliamentary Record, Question answered by the Department of Justice (2024).

148 Victim Charter of Northern Ireland, Department of Justice. See Justice (Northern Ireland) Act 2015 (Northern Ireland), s.28.

149 Gillen Review, 163.

150 ASSIST NI, “About ASSIST NI”.

151 Gillen Review Implementation Team, Gillen Implementation Plan: The Gillen Review into the Law and Procedures in Serious Sexual Offences in Northern Ireland (2020) 6 .

152 P Lockhart, “The impact of the SOLAs pilot”, Victim Support NI Conference: What Next for Victim Rights? (2023), speech.

153 Victim Support NI, Annual Report 2022-23 (2023) 7. For context, the population of Northern Ireland is 1.92 million: NISRA Statistical Bulletin, 2023 Mid-year Population Estimates for Northern Ireland (2024).

154 SOLAs are all qualified as solicitors but non-practising to the extent that the provision of advice is not formally regulated by the Law Society of Northern Ireland.

155 We have been advised that in addition to the core grant of £1.8 million to Victim Support for general support services, the Department of Justice provides approximately £190,000 per year for the SOLA scheme, alongside a pot of funding for cases that may require advice or representation from counsel.

156 Gillen Review, 179.

157 Victim Support NI referral form.

158 Victim Support NI referral form.

159 Northern Ireland Executive Department of Justice (n 47).

160 Gillen Review , 1 73 & 187.

161 Northern Ireland Executive Department of Justice, Draft Domestic and Sexual Abuse Strategy 2023-2030 (2023) .

162 Victim Support NI, Annual Report 2022-23 (2023) 7 .

163 Gillen Review, 174 (referencing the Criminal Evidence (Northern Ireland) Order 1999, art.28).

164 M Iliadis and others, “Independent separate legal representation for rape complainants in adversarial systems: lessons from Northern Ireland ” (2021) 48 Journal of Law and Society 250 at 256.

165 I bid .

166 Dame Vera Baird QC, Sir John Gillen Review of Sexual Offences in Northern Ireland: Consultation Response (2019) .

167 Gillen Review , 163.

168 Kirchengast (n 127) 57.

169 Iliadis and others (n 164) 258-259.

170 Gillen Review, 22: “If the law and procedures in serious sexual offences are to be fairly applied to all our citizens, it must embrace those in marginalised communities including, minority black, Asian and ethnic groups, those with physical, sensory and learning disabilities or mental ill health, the LGBT+ community, older people, Traveller communities, sex workers and, purely in the context of serious sexual offences, males who for a number of reasons may be even more reluctant than others to report these crimes and come within the criminal justice system…. We desperately need empirical research commissioned by government to learn the prevalence, extent, nature and experiences of serious sexual offences among these groups.”

171 Gillen Review , 173 .

172 Iliadis and others (n 164) 253.

173 Evidence Act 1977 s.14G(2).

174 Evidence Act 1977 s.14G(3)(b). What constitutes a “protected counselling communication” is defined in s.14(A) of the Act.

175 Evidence Act 1977 s.14G(4).

176 Queensland Government, Consultation Paper: Sexual Assault Counselling Privilege (2016) 5.

177 Evidence Act 1977 s.14K(2).

178 Evidence Act 1977 s.14G(5).

179 Where the complainant consents, this must be given in writing: Evidence Act 1977 s.14G(7). There are special provisions for circumstances where the complainant is unable to write.

180 Evidence Act 1977 s.14G(6).

181 Evidence Act 1977 s.4(6).

182 Legal Aid Queensland, Protecting sexual assault counselling records (2020).

183 See Report of the Special Taskforce on Domestic and Family Violence, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015), recommendation 130 and Queensland Government, Response to the Report of the Special Taskforce on Domestic and Family Violence, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015) 37.

184 Report of the Special Taskforce on Domestic and Family Violence (n 183) 62.

185 Women’s Legal Aid Service Queensland, Annual Report 2018-19 (2019) 19.

186 Queensland Government, Department of Justice and Attorney-General, Increasing Privacy Protection (2021).

187 Ibid.

188 See Queensland Law Society, “How solicitors and barristers differ”.

189 This may arise, for example, where Legal Aid is already representing the defendant in the case.

190 Legal Aid Queensland, Sexual Assault Counselling Privilege (Counselling Notes Protect).

191 Women’s Legal Aid Service Queensland, “About us”.

192 Women’s Legal Service Queensland, Counselling Notes Protect (CNP) – Sexual Assault.

193 Queensland Government, Delivery of Recommendations, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2019) 37.

194 Queensland Government, Prevent. Support. Believe. Queensland’s Framework to Address Sexual Violence Second Action Plan 2023–24 to 2027–28 (2024) 15.

195 Women’s Legal Service Queensland, Annual Report 2019-20 (2020) 19.

196 Ibid.

197 Ibid 18. For context, the population of Queensland is 5,596,300: Australian Burean of Statistics, National, State and Territory Population (June 2024).

198 Women’s Legal Service Queensland, Annual Report 2020-21 (2021) 18.

199 Ibid 12.

200 Ibid 10.

201 It was introduced by the Evidence (Confidential Communications) Act 1998 (Victoria).

202 By Part 6 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Victoria).

203 “Confidential communications” and “protected health information” are defined by s.32BA of the Act.

204 Evidence (Miscellaneous Provisions) Act 1958 s.32C(1).

205 Evidence (Miscellaneous Provisions) Act 1958 s.32CD(1).

206 Evidence (Miscellaneous Provisions) Act 1958 s.32CD(2).

207 Evidence (Miscellaneous Provisions) Act 1958 s.32CD(4)(c) and (d).

208 Evidence (Miscellaneous Provisions) Act 1958 s.32CC(2).

209 Evidence (Miscellaneous Provisions) Act 1958 s.32CC(3).

210 Evidence (Miscellaneous Provisions) Act 1958 s.32D(1A)(a). There are separate provisions covering a situation where the complainer cannot be located and other exceptional circumstances.

211 Criminal Procedure Act 2009 s.348.

212 Victorian Law Reform Commission, Improving the Justice Response to Sexual Offences (2021) recommendation 47.

213 Ibid, recommendation 87.

214 See further section 3.1.

215 Victims Legal Service, News Release, 29 February 2024.

216 It was established in 2021. See Victorian Government, Victorian Budget 21/22, Keeping Women and Children Safe (2021).

217 Victim of Crimes Commissioner, Submission to Scoping the Development of Specialised and Trauma-Informed Legal Services for Victims and Survivors of Sexual Assault – Discussion Paper (2023) 5.

218 Women’s Legal Service Victoria, Our Purpose.

219 A position at Djirra (the Aboriginal Family Violence Legal Service) aimed at supporting aboriginal women to report sexual violence.

220 This may arise, for example, where Legal Aid is already representing the defendant in the case. It would not always be possible to pass on the case to the WLS, either because they lack capacity or because the complainant is male.

221 Queensland Government, Department of Justice and Attorney-General, Increasing Privacy Protection (2021); Legal Aid Queensland Grants Handbook, Sexual Assault Counselling Privilege (Counselling Notes Protect).

222 Legal Profession Uniform Law Application Act 2014 (Victoria).

223 Set out in Victoria Legal Aid, Victoria Legal Aid Practice Standards (2023).

224 Legal Practitioner Guideline, Guideline 15 – Confidential communications and protected health information.

225 Ibid.

226 For context, the population of Victoria is 6,981,400: Australian Bureau of Statistics, National, State and Territory Population (2024).

227 As noted in section 1.3, ILR necessarily also includes a component of ILA.

228 i.e. June 2025.

229 See rule B.3.2 of the Law Society of Scotland Practice Rules (2011).

230 Participant 1.

231 Participant 25.

232 Participant 25.

233 Participant 1.

234 Participant 14.

235 Participant 12.

236 Participant 18.

237 Participant 2.

238 Participant 6.

239 Participant 27.

240 Participant 24.

241 Participant 15.

242 See further chapter 7 on trauma-informed practice.

243 Participant 27.

244 Participant 24.

245 Participant 24.

246 Criminal Procedure Act 1986 s.299 – see further section 3.5.1.

247 Evidence Act 1977 s.14G(4) and (5) (Queensland).

248 See e.g. Evidence (Miscellaneous Provisions) Act 1958 s.32CD(4) (Victoria); Criminal Code s.278.4(2.1) (Canada); Evidence Act 1977 s.14K (Queensland).

249 As per s.64(2) of the Victims, Witnesses, and Justice Reform (Scotland) Bill.

250 As provided for by rule 3.3 of the Law Society of Scotland’s Practice Rules (2011).

251 See e.g. S Brindley, “Exploring effective participation as a means to address re-traumatisation of complainers of sexual crime in Scotland” [2024] Crim LR 305.

252 Participant 37.

253 Participant 40.

254 As established in RR v HM Advocate [2021] HCJAC 21, 2021 JC 167 (where it is reported as RR, Petitioner). See further section 1.1.4.

255 Participant 14.

256 This is noted throughout Cowan, Keane and Munro (n 5) e.g. 13, 18, 42, 78, 104-109, 149-150.

257 See Brindley (n 251).

258 Corrins v BM [2023] SAC (Crim) 12, 2024 SC (SAC) 23.

259 At para 38.

260 See section 288BA of the 1995 Act.

261 Cowan, Keane and Munro (n 5) 34.

262 Participant 40.

263 See s.2(4) of the Domestic Abuse (Scotland) Act 2018 and inter alia CA v HM Advocate 2023 JC 8.

264 Participant 40.

265 See section 1.3.

266 See s.7 of the Criminal Law (Sexual Offences and Human Trafficking) Act 2024, amending s.4A of the Criminal Law (Rape) Act 1981.

267 See section 3.6.

268 Participant 18.

269 Northern Ireland Department of Justice (n 47).

270 RN v HM Advocate [2020] HCJAC 3 at [4].

271 Participant 40.

272 This may change if the specialist sexual offences court comes into operation.

273 Participant 11.

274 Participant 13.

275 Participant 23.

276 “My understanding is that … in the protected comms case that I mentioned that we’ve recently been involved in, we did brief counsel for that. And so, there’s definitely that capacity. I don’t know whether that capacity came out of the pilot funding or whether it was taken out of Women’s Legal funding.” (Participant 31)

277 Participant 17.

278 Participant 12.

279 See Cowan, Keane and Munro (n 5) 40, noting data from 11 Jan-11 April 2016 during which 57 section 275 applications were made, of which 52 were in the High Court and 5 in the Sheriff Court.

280 See ibid 104-106.

281 Participant 38.

282 Participant 41.

283 Participant 40.

284 Participant 40.

285 Participant 38.

286 Participant 38.

287 Participant 38.

288 It is worth noting that attempts are being made at the University of Glasgow Law School, at which the co-authors of this report are based, to take positive steps to instil in young lawyers an interest generally in the realm of complainers’ rights, although such initiatives are still in their infancy.

289 Participant 35.

290 Albeit provided in a different context, in this regard see the comments of Lord Gill in the case of Addison v HM Advocate [2014] HCJAC 110, 2015 JC 107 at [25] and rule 8.4 and the associated guidance on instruction of representation by the Law Society of Scotland.

291 Participant 38.

292 See generally Criminal Justice Committee, Victims, Witnesses, and Justice Reform (Scotland) Bill Stage 1 Report (SP Paper 560, 2024) 97-126.

293 See s.47 of the Victims, Witnesses, and Justice Reform (Scotland) Bill.

294 Participant 9.

295 Participant 13.

296 Participant 14.

297 Participant 14.

298 Participant 24.

299 Participant 23.

300 Participant 5.

301 Participant 38.

302 See e.g. the analysis of a case considered in Cowan, Keane and Munro (n 5) 116-118.

303 Cowan, Keane and Munro (n 5).

304 ibid 11.

305 The Faculty of Advocates Guide to the Professional Conduct of Advocates Rule 6.3.9.3.

306 Law Society of Scotland Practice Rules (2011), rule B1.13.

307 Participant 11.

308 Participant 18.

309 Participant 40.

310 Participant 40.

311 Participants 38 and 41.

312 Participant 38.

313 Participant 40.

314 Participant 41.

315 Moir v HM Advocate 2005 1 JC 102 at [51] and [52].

316 Cowan, Keane and Munro (n 5) 86.

317 See e.g. the rules on client confidentiality contained at B1.6 of the Law Society of Scotland’s Professional Conduct Rules for Solicitors. See also Scottish Legal Complaints Commission v Murray, [2022] CSIH 46.

318 Participant 41.

319 See section 3.4.1.

320 Participant 13.

321 Participant 13.

322 Participant 14.

323 Participant 25.

324 Participant 22.

325 Participant 22.

326 Participant 7.

327 Supreme Courts of Scotland – Senators of the College of Justice Consultation Response to the Victims, Witnesses, and Justice Reform (Scotland) Bill.

328 Participant 34.

329 Participant 34. On this duty, see section 1.1.4.

330 Participant 41.

331 Participants 38 and 40.

332 Participant 40.

333 Participant 38.

334 See e.g. participants 38 and 40.

335 Participant 14.

336 Participant 38.

337 See Keane and Convery (n 21) 31 and 33.

338 See e.g. A Wegrzyn and others, “Rape crisis victim advocacy: a systematic review” (2023) 24 Trauma, Violence, & Abuse 1966 at 1979; E Daly and O Smith, Scoping Review: Legal & Non-Legal Advocacy for Rape Complainants in Adversarial Jurisdictions (2020) 32.

339 Participant 24.

340 Participant 18.

341 Participant 28.

342 Following the decision of the Court of Session in WF v Scottish Ministers [2016] CSOH 27, 2016 SLT 359. See further section 4.3.1.

343 Participant 36.

344 Corrins v BM [2023] SAC (Crim) 12, 2024 SC (SAC) 23.

345 Participant 21.

346 Participant 26.

347 T Kirchengast, “Victim lawyers, victim advocates, and the adversarial criminal trial” (2013) 16 New Criminal Law Review 568 at 568.

348 See e.g. T Kirchengast (n 127) 70. This was also an issue raised in the Dorrian Review, para 4.36.

349 Dorrian Review, paras 4.38-4.39.

350 Participant 17.

351 Participant 26.

352 Participant 29.

353 Participant 20.

354 Participant 16.

355 Participant 28.

356 Participant 17.

357 Participant 34.

358 See section 4.2.4.

359 Senators of the College of Justice, “Scottish Government Consultation Paper – Improving victims’ experiences of the justice system. Response from the Senators of the College of Justice” (2022) 14 (response to Q54).

360 Participant 40.

361 Participant 40.

362 See Criminal Justice Committee, Victims, Witnesses, and Justice Reform (Scotland) Bill Stage 1 Report (SP Paper 560, 2024) 141.

363 Participant 11.

364 Participant 13.

365 Participant 9.

366 Participant 38.

367 Participant 40.

368 RR v HM Advocate [2021] HCJAC 21, 2021 JC 167 (where it is reported as RR, Petitioner). See further section 1.1.4.

369 Participant 34.

370 Participant 38.

371 Participant 40.

372 See Cowan, Keane and Munro (n 5) 11, 16, 70-71, 81 and 139.

373 Participant 40.

374 See e.g. participants 38 and 40.

375 See e.g. s.162 of the Criminal Justice and Licensing (Scotland) Act 2010 and article 11 of the Law Society of Scotland’s Code of Conduct for Criminal Work.

376 Participant 40.

377 This was also an issue raised in the Dorrian Review, paras 4.17-4.18.

378 On this issue, see also chapter 7 on trauma-informed practice.

379 Participant 20.

380 Participant 17.

381 Participant 35.

382 Participant 25.

383 Participant 18.

384 RR v HM Advocate [2021] HCJAC 21, 2021 JC 167 (where it is reported as RR, Petitioner). See further section 1.1.4.

385 Participant 40.

386 Participant 34.

387 See e.g. J Herman, Trauma and Recovery: The Aftermath of Violence (2015); J Herman, “Recovery from psychological trauma” (1998) 52 Psychiatry and Clinical Neurosciences S98.

388 KM Auty and others, “What is trauma-informed practice? Towards operationalisation of the concept in two prisons for women” (2023) 23 Criminology & Criminal Justice 716.

389 J Levenson, “Trauma-informed social work practice” (2017) 62 Social Work 105.

390 E Emsley and others, “Trauma-informed care in the UK: where are we? A qualitative study of health policies and professional perspectives” (2022) 22 BMC Health Services Research 1164.

391 A Day and others, “The effectiveness of trauma-informed youth justice: a discussion and review” (2023) 14 Frontiers in Psychology 1157695.

392 S Covington, “Creating a trauma-informed justice system for women”, in SL Brown and L Gelsthorpe (eds), The Wiley Handbook on What Works with Girls and Women in Conflict with the Law: A Critical Review of Theory, Practice, and Policy (2022) 172.

393 See e.g. M Petrillo, “‘It made my mind unwell’: trauma-informed approaches to the mental health needs of women in the criminal justice system”, in J Winstone (ed), Mental Health, Crime and Criminal Justice (2016) 131.

394 UK Government, Office for Health Improvement and Disparities, Guidance: Working Definition of Trauma-Informed Practice (2022).

395 Scottish Government, Victims, Witnesses, and Justice Reform (Scotland) Bill Factsheet (2023).

396 C Bruce, S Petersen and S Ferguson, Trauma-Informed Justice: A Knowledge and Skills Framework (2023).

397 NHS Education for Scotland, National Trauma Transformation Programme (last updated 22/08/2024).

398 Ibid.

399 UK Government (n 394).

400 Participant 33.

401 Participant 14.

402 S Katz and D Haldar, “The pedagogy of trauma-informed lawyering” (2016) 22 Clinical Law Review 359. See also Law Society of Scotland, Trauma-informed Lawyer Certification Course.

403 J Kinghan and others, Designing a Trauma-informed Approach to Clinical Legal Education (2024).

404 Participant 24.

405 Participant 11.

406 Participant 20.

407 Participant 15.

408 Participant 33.

409 Participants 16 and 17.

410 Participant 17.

411 Participant 16.

412 Participant 17.

413 Participant 20.

414 Participant 33.

415 Participant 33.

416 Participant 12.

417 Participant 33.

418 Participant 26.

419 Participant 36.

420 Participant 24.

421 See e.g. participants 24, 25, 16 and 17.

422 Participant 24.

423 Participant 22.

424 See section 6.4.

425 Participant 33.

426 A point that was also made in the context of relationships with stakeholders: section 6.4.

427 Participant 20.

428 Participant 15.

429 Participant 24.

430 Participant 8.

431 Participant 8.

432 Participant 28.

433 Participant 20.

434 Participant 26.

435 Participant 33.

436 Participant 20.

437 Participant 40.

438 Participants 31, 33 and 25.

439 Participant 31.

440 Participant 17.

441 Participant 33.

442 M Leering, “Conceptualizing reflective practice for legal professionals” (2014) 23 Journal of Law and Social Policy 83 at 84.

443 J Fleck and R Francis, Vicarious Trauma in the Legal Profession: A Practical Guide to Trauma, Burnout and Collective Care (2021).

444 Participant 33.

445 Participant 10.

446 Participant 6.

447 Participant 1.

448 Participant 1.

449 Participant 27.

450 Participant 27.

451 Participant 40.

452 Participant 33.

453 See e.g. C Sulley and others, “‘At least they’re workin’ on my case?’ Victim notification in sexual assault ‘cold’ cases” (2021) 36 Journal of Interpersonal Violence 4360.

454 A Cossins, Closing the Justice Gap for Adult and Child Sexual Assault (2020) 533.

455 Iliadis and others (n 164) 272.

456 Participant 33.

457 Participant 27.

458 Participant 27.

459 Participant 15.

460 Participant 15.

461 Participant 20.

462 See also section 4.2.4.

463 Participant 10.

464 Participant 33.

465 See C Denvir and others, Legal Aid and the Future of Access to Justice (2023). This was also an issue raised in the Dorrian Review, para 3.33.

466 C James, “Towards trauma-informed legal practice: a review” (2020) 27 Psychiatry, Psychology and Law 275.

467 C Pike and A Rebar, “What would a trauma-informed workplace ideally look like in legal aid? A qualitative perspective from lawyers” (2024) 31 Psychiatry, Psychology and Law 523 at 524.

468 Participant 24.

469 Participant 12.

470 Participant 26.

471 James (n 466) at 275.

472 Pike and Rebar (n 467) at 535-536.

473 Ibid.

474 Participant 26.

475 Participant 27.

476 Participant 14.

477 Participant 33.

478 J Singer and others, “Compassion satisfaction, compassion fatigue, and burnout: a replication study with victim advocates” (2019) 46 Journal of Social Service Research 313 at 316.

479 F Fontin and others, “Compassion satisfaction and compassion fatigue among violence intervention caseworkers” (2020) 47 Journal of Social Service Research 486 at 490.

480 Wegrzyn and others (n 338) at 1979.

481 We note that there is some contestation around the labelling of legal aid and/or not-for-profit legal service as ‘private practice’ in view of its failure in adequately capturing the public interest nature of the work. See further E Cooke, “‘Fat-cats’ versus ‘church mice’: unveiling legal aid practice from behind the shadows of private legal practice in England and Wales” (2024) 44 Legal Studies 573.

482 Participant 3.

483 Participant 14.

484 Participant 22.

485 Participant 14.

486 Participant 17.

487 Participant 22.

488 Participant 23.

489 Participant 22.

490 Participant 12.

491 Participant 14.

492 Participant 17.

493 Participant 15.

494 Participant 20.

495 Participant 25.

496 Participant 26.

497 Participant 26.

498 Participant 18.

499 Participant 27.

500 Participant 31.

501 Participant 18.

502 Participant 14.

503 Participant 14.

504 Participant 18.

505 Participant 24.

506 Participant 18.

507 Participant 31.

508 Participant 23.

509 Participant 27.

510 Participant 25.

511 Participant 23.

512 Participant 11.

513 Participant 11.

514 Participant 10.

515 Participant 21.

516 Participant 25.

517 Participant 14.

518 Participant 22.

519 Participant 23.

520 Legal Aid (Scotland) Act 1986.

521 Participant 35.

522 Participant 35.

523 H Barrett, A Scoping Study into the use of Contracting for the Provision of Legal Aid in Northern Ireland (Northern Ireland Official Publications Archive, 2019) 8.

524 The Law Society of England and Wales, Tendering for legal aid contracts (10 October, 2024).

525 Participant 36.

526 Participant 41.

527 Participant 36.

528 Participant 36.

529 Participant 40.

530 Participant 40.

531 Participant 36.

532 Participant 36.

533 Participant 41.

534 See Scottish Legal Aid Board, Response to the Legal Aid Reform in Scotland Consultation (2019) 6-7. For international comparative discussion of legal aid, including Scotland, see Open Innovation Team, Review of Civil Legal Aid in England and Wales: Comparative Analysis of Legal Aid Systems (2024).

535 Barrett (n 523) 6.

536 Ibid 42.

537 Participant 25.

538 Participant 14.

539 Participant 5.

540 Participant 2.

541 Participant 36.

542 Participant 5.

543 In the Canadian jurisdictions we examined, ILA and ILR are separate services and are administered by different bodies – see section 3.2.2.

544 Participant 5.

545 Participant 36.

546 Participant 1.

547 Participant 1.

548 Participant 4.

549 Participant 1.

550 Participant 5.

551 Participant 7.

552 Participant 7.

553 Participant 7.

554 Participant 36.

555 Participant 3.

556 Participant 1.

557 Participant 37.

558 Participant 40.

559 Participant 40.

560 See e.g. participant 23.

561 N Vickers, “Free legal advice for rape victims starts”, BBC News, 18 June 2024,

https://www.bbc.co.uk/news/articles/cedd7zgq59do.

562 Denvir and others (n 465).

563 J Kinghan, Recruitment and Retention of Mid-Career Lawyers in Civil Society Organisations (2023) 19.

564 Participant 8.

565 Participants 10 and 16.

566 Participant 11.

567 Participant 41.

568 Participants 40 and 41.

569 Participant 41.

570 Participant 40.

571 Denvir and others (n 465) 41.

572 Participant 34.

573 Participant 40.

574 Participant 40.

575 Participant 41.

576 Participant 41.

577 Participant 38.

578 Participant 38.

579 Participant 40.

580 Denvir and others (n 465) 92-127. See also R Collier, “Whose ‘wellbeing’ are we talking about? Culture change and the politics of the legal profession’s wellness turn” (2025) International Journal of the Legal Profession, advance access.

581 Participant 40.

582 Kinghan (n 563).

583 P Findlay and others, Fair Work in the Third Sector in Scotland: A Report for Glasgow Council for the Voluntary Sector (2023) 71.

584 Participant 36.

585 The terminology is adopted from KA Lugo-Graulich and others, What Constitutes Success? Evaluating Legal Services for Victims of Crime: Final Report Prepared for the United States Department of Justice (2021) 29 (figure 8). The authors also note what they term “community measures”, which would include things like the extent to which the general community are educated about victims’ rights and have confidence in the criminal justice system.

586 Smith and Daly (n 92). This evaluation of a victim advocate scheme focused on substantive case outcomes (section 6.1), complainant satisfaction (section 6.3), the impact on the accused (section 6.4), and the efficiency of investigations (section 6.5).

587 Participant 22.

588 Participant 33.

589 For a general checklist of the different ways in which victim satisfaction might be measured, see Lugo-Graulich and others (n 585) 29 (figure 8).

590 See e.g. Brindley (n 251) 308-310.

591 Participant 40.

592 Participant 23.

593 Participant 22.

594 Participant 23.

595 Participant 27.

596 In Scotland, see e.g. HM Inspectorate of Prosecution in Scotland, Thematic Review of the Investigation and Prosecution of Sexual Crimes (2017) ch 4; O Brooks-Hay, M Burman, L Bradley and D Kyle, Evaluation of the Rape Crisis Scotland National Advocacy Project: Final Report (2018) 21-25; O Brooks-Hay, L Bradley and M Burman, Justice Journeys: Informing Policy and Practice Through Lived Experience of Victim-Survivors of Rape and Serious Sexual Assault (2019) chapter 3. Internationally, see e.g. E McDonald, Rape Myths as Barriers to Fair Trial Process: Comparing Adult Rape Trials with Those in the Aotearoa Sexual Violence Court Pilot (Canterbury University Press, 2020) (New Zealand); J Murphy-Oikonen, L Chambers, A Miller and K McQueen, “Sexual assault case attrition: the voices of survivors” (2022) 12 SAGE Open 21582440221144612 (Canada).

597 On which, see chapter 7.

598 Participant 7.

599 See e.g. R Killean, “Legal representation for sexual assault complainants”, in R Killean, E Dowds and A-M McAlinden (eds) Sexual Violence on Trial: Local and Comparative Perspectives (2021) 174 at 177.

600 Participant 26.

601 Participant 14.

602 See e.g. Brindley (n 251) at 318; Kirchengast (n 127) at 68.

603 Participant 27.

604 Participant 8.

605 See e.g. Iliadis and others (n 164) at 272; Killean (n 599) 174 at 178.

606 See e.g. participant 18.

607 Participant 28.

608 Participant 40 and see section 9.2.2 below. The issue of delay in proceedings from the introduction of ILR was also discussed in section 4.2.4.

609 Participant 29.

610 Participant 22.

611 Participant 23.

612 See e.g. participants 1, 2 and 27.

613 Participant 14.

614 It was touched on by e.g. participants 40 and 24.

615 It was discussed, albeit briefly, in the evaluation of the Northumbria pilot of the SVCA scheme: see Smith and Daly (n 92) 63.

616 See e.g. M Burman and O Brooks-Hay, Delays in Trials: The Implications for Victim-Survivors of Rape and Serious Sexual Assault: An Update (2021).

617 In the context of Ireland, the O’Malley Review considers the strengths and weaknesses of the ILR system as it stood when the review was undertaken, but this discussion is limited: see O’Malley (n 52) chapter 6.

618 Wegrzyn and others (n 338) at 1980.

619 Smith and Daly (n 92). There have also been evaluations of support services for victims of sexual assault that do not include ILR or ILA: see e.g. O Brooks-Hay, M Burman, L Bradley and D Kyle, Evaluation of the Rape Crisis Scotland National Advocacy Project: Final Report (2018).

620 As noted earlier, there was one case where the SVCA instructed counsel for a hearing (although in the event the hearing did not take place). See further section 3.3.2, where the scheme is described.

621 See section 3.3.2.

622 Representing approximately 6% of eligible cases reported to the police during that period: Smith and Daly (n 92) 38.

623 Ibid 7. Most of the complainants who quickly disengaged “did so because they decided not to proceed with the police complaint”: ibid.

624 Ibid.

625 Ibid.

626 Ibid 51.

627 Ibid 53.

628 Ibid 58.

629 A Jillard, J Loughman and E MacDonald, “From pilot project to systemic reform: keeping sexual assault victims’ counselling records confidential” (2012) 37 Alternative Law Journal 254 at 255.

630 Ibid.

631 C Gleeson, “The Sexual Assault Communications Privilege pro bono scheme” (2010-2011) Bar News: Journal of the NSW Bar Association 73. Issues relating to notice requirements were explored in our interviews – see especially chapters 4 and 7.

632 Participant 30.

633 Participant 25.

634 Victim Support NI, Annual Report 2022-23 (2023) 7 .

635 I bid.

636 Participant number withheld to protect confidentiality.

637 Participant number withheld to protect confidentiality.

638 This is discussed in more detail in chapter 8.

639 See section 7.6.

640 Emma Ritch Law Clinic, University of Glasgow School of Law.