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

Executive Summary

Background

The Victims, Witnesses, and Justice Reform (Scotland) Bill makes provision for a system of independent legal representation for complainers in sexual offences cases where an application is made to admit evidence of their character or sexual history in a criminal trial. In this report, we use “independent legal representation” (ILR) to mean in-court representation in relation to a part of the criminal process whereby the complainer is recognised as a party to proceedings. We use “independent legal advice” (ILA) to refer to services delivered by qualified legal professionals which advise complainers, for example, of the operation of the legal process and their rights within it but do not extend to the representation of the complainer in a court at a hearing where they have a right to be heard. The provision of ILR inevitably entails the provision of ILA, given that a legal representative will need to provide advice and information in order to take instructions and make representations at the court hearing.

The Bill is by design largely silent on the mechanism by which this provision will become operative. The aim of this research was to develop an evidence-based understanding of different models of delivery of ILR in comparable adversarial legal jurisdictions, identify their advantages and disadvantages and consider how ILR might best be implemented in light of relevant factors pertaining to the Scottish criminal justice system.

Research methods

The research involved two main components: a literature review and semi-structured interviews. The literature review identified comparable jurisdictions that operated (or have operated) ILR and/or ILA from which lessons might be learned for Scotland. It then involved an in-depth examination of publicly available sources in the selected jurisdictions (including Scotland) in order to consider the schemes that are available in more detail.

We undertook 30 semi-structured, in-depth interviews, each of approximately an hour long, involving a total of 41 participants, either from Scotland or from the comparator jurisdictions. The international participants were either legal professionals/service managers involved in the management or delivery of ILR or policy makers/other stakeholders with experience of designing/operating ILR schemes. The Scottish participants were all criminal justice stakeholders with knowledge or experience of sexual offence work.

Key findings

Which international jurisdictions can we learn from?

We identified a number of comparable jurisdictions that operate a system of state-funded ILR. Several Australian jurisdictions do so (established schemes in New South Wales and Queensland and a pilot scheme involving Australian Capital Territory, Victoria and Western Australia), but ILR is only available for applications to admit sensitive records. Only Ireland and Canada currently provide state-funded ILR for applications to admit sexual history evidence. There is no ILR scheme in New Zealand.

We also identified jurisdictions that operate (or have operated in the past) state-funded schemes providing ILA, namely England and Wales and Northern Ireland. Both of these jurisdictions were, at the time of writing, considering the introduction of ILR. It is worth noting too that a pilot scheme of ILA provision has been announced for Scotland.

We studied the operation of ILR/ILA in all of the jurisdictions noted above, with the exception being that of the three pilot sites in Australia, we only studied Victoria (on the basis that these schemes had only recently been established so the learning that could be gained from them was limited). It was important to look beyond the two jurisdictions that offered ILR in the context of sexual history evidence (Canada and Ireland). There are clear parallels between applications to admit sensitive records and applications to admit sexual history evidence such that there are important lessons to be learned, especially from those jurisdictions that have well established ILR schemes in relation to sensitive records (New South Wales and Queensland). Established systems of ILA also offer learning points, especially in terms of the effectiveness of the model of delivery and the features of trauma-informed practice.

The selected jurisdictions operate (or operated) a number of different models of ILR/ILA delivery. The key distinction was between salaried models (the Australian jurisdictions, England and Wales, Northern Ireland) and private practice models (Canada). Ireland operated a hybrid model. The salaried models also differed in terms of where the lawyers were located – which could be within a legal aid service, a third sector organisation or a mixture of both.

Another key difference between the models was whether ILR was provided by solicitors (in those jurisdictions where this was permitted), counsel, or both.

Referral pathways

Systems of ILR delivery require to be structured around a ‘triggering event’. Rules of professional practice on how solicitors may obtain clients impact the design of referral pathways that follow from that triggering event.

All the jurisdictions we studied that operated an ILR service assigned initial responsibility to the prosecutor to take action following the triggering event to inform the complainer of their rights to ILR. All these jurisdictions also operated a form of direct prosecutor referral, whereby the prosecutor passed on the complainer’s details to an ILR provider, who in turn contacted the complainer.

Direct prosecutor referral has considerable advantages but would not be possible in Scotland, given professional practice rules. The relevant rules on professional practice would not, however, preclude COPFS providing complainers with information about a dedicated service of ILR provision for complainers at section 275 hearings, assuming the complainer then took the next step of instructing a solicitor at that service directly. This would be a similar model to that operating in Northern Ireland, albeit in the context of ILA, not ILR.

Regardless of the referral mechanism utilised, swift action by the prosecutor in terms of contacting the complainer following the triggering event is of the utmost importance to the effective operation of an ILR scheme, especially given the time parameters within which ILR must be provided.

There is no way to ensure consistent and effective representation of docket witnesses or other classes of witnesses in relevant cases via consistent referral pathways under the system of ILR proposed in the Bill, other than by amending section 274 of the 1995 Act to ensure such individuals are now protected by this provision.

ILR in court hearings

Facilitating ILR in court proceedings is a matter that requires careful thought and consideration even where the right to ILR is narrowly defined. The form ILR can take varies between written and/or oral submissions. We consider that in some instances involving unopposed and uncontentious section 275 applications there is capacity for submissions to be provided in writing only, although opposed applications will require a legal representative to attend court.

In the jurisdictions we analysed, the role of ILR was sometimes performed by solicitors alone and sometimes with solicitors instructing a class of independent specialist pleaders, such as barristers. The advantage of involving a specialist independent pleader in a system of ILR was the added expertise and ability that such a lawyer brought to the service. The involvement of such individuals, however, comes at both a logistical and financial cost. In Scotland any system of ILR will require the involvement of advocates or solicitor-advocates who have rights of audience in the High Court of Justiciary. Policy makers might consider whether in future a service could utilise an employed number of solicitor advocates. Regardless of the type of service delivery adopted, it must protect complainers’ choice of representation as far as possible and have capacity to utilise other independent specialist pleaders, where appropriate.

Whilst the danger of the impression of coaching of witnesses is a risk in systems providing ILR, relevant Scottish professional rules and careful legal practice should ensure appropriate conduct.

Where ILR requires to be provided after the trial has commenced, or where complainers are given a right of appeal, difficult issues for policy makers arise. In respect of the former, a salaried model of ILR provision has the potential to mitigate against delay. In respect of the latter, the Bill’s approach appears to be arbitrary, and more thought requires to be given to the position in summary cases.

Relationships with stakeholders

Facilitating effective communication between criminal justice stakeholders in respect of the design and operation of systems of ILR is a matter of vital importance, which can lead to the early identification of potential problems and improvements in the performance of such systems.

The involvement of service users, i.e. victim/survivors of sexual violence, in these processes of design and oversight can provide policy makers with valuable insight.

The proposals in the Bill relating to the disclosure of evidence as currently drafted risk overcomplicating matters, creating delays and creating unnecessary work for the Crown. A simpler system would be for the independent legal representative to apply to the court for disclosure – in those cases that require it – and intimate that application to the Crown and defence. This application should be advanced within seven days of intimation of the section 275 application, or later on cause shown, with the Crown and defence thereafter intimating any opposition to same within seven days, or later on cause shown.

There is a danger of over-crowding of the space if different agencies are all involved with the complainer, which has the potential to confuse and further traumatise. There is a need to clarify the roles of the different parties involved in interacting with complainers and to ensure that all parties (and complainers) understand this delineation.

Trauma-informed practice

Trauma-informed practice is vital to meet the needs of complainers in cases of sexual violence and to minimise the risk of re-traumatisation.

The key components of trauma-informed practice in the context of ILR that emerged from the research conducted for this report were (a) clear timelines that minimise delay so that there is adequate time to build the trust and confidence of complainers; (b) ensuring that information is conveyed in ways that are alive to the impacts of trauma and that communication styles are adjusted accordingly; (c) bespoke training and ongoing reflective practice drawing upon multidisciplinary expertise; and (d) managing expectations about the limitations and extent of the provision of ILR and signposting to other support services if necessary.

There is a heightened risk of vicarious trauma and burnout for lawyers providing an ILR service. This risk can be lessened through allocating resource and time to peer support, the provision of breaks and reflective supervision.

Models of delivery

Across the jurisdictions studied, the key distinction was whether ILR was delivered by way of salaried or private practice lawyers. Both models have distinct advantages and disadvantages.

The advantages of a salaried model include the development of expertise in relation to service provision; easier integration of principles of trauma-informed practice; a single point of contact for clients with potential access to other support services; greater ease of monitoring and evaluation; potential benchmarking of rates of pay; lawyers can rely on the technical and administrative support of the wider organisation; and they can support one another, including during periods of leave, thus minimising the likelihood of burnout. Disadvantages might include low rates of pay; capacity issues; and conflicts of interest around cases, especially if services are situated within legal aid.

A salaried model will usually require some degree of ad hoc private provision to deal with conflicts of interest, a need for specialist expertise, or unexpected capacity issues.

The key advantage of a private practice model was flexibility and with that a reduced risk of burnout and the risk of vicarious trauma. Reaching more remote geographic areas is also a potential advantage. Disadvantages include insufficient time to spend with traumatised clients to build trust; reduced potential for the development of specialist expertise; difficulties in finding roster or panel lawyers at short notice; conflicts of interest; and the challenge of monitoring the quality of casework.

Interviewees tended to observe a greater number of advantages and fewer disadvantages with the salaried model of provision. In addition, the disadvantages of the salaried model were seen as more easily addressed compared to those of the private practice model. The risk of burnout can be lessened through allocating resource and time to peer support, the provision of breaks and reflective supervision. Capacity and conflict of interest issues can be addressed by having additional provision by way of an ad hoc panel of lawyers. The most significant disadvantages of the private practice model relate to difficulties in developing specialist expertise and embedding trauma-informed approaches. These are not impossible to address, but the constraints of private practice make it harder to do so.

It is notable that in both jurisdictions that operated a private practice model, interviewees told us that if they could start again and design their system from scratch, they would choose a salaried model.

Regardless of the model chosen, key issues include rates of pay and conditions and (in a salaried model) grants being for sufficient lengths of time to prevent insecure employment and facilitate the development of trauma-informed approaches, specialist expertise and reflective practice skills.

Evaluation and measuring success

ILR services can be evaluated using ‘victim measures’, ‘system measures’, or a mixture of both. Victim measures relate to how complainers feel as a result of engaging with the service. The two victim measures that were repeatedly mentioned by research participants were increased agency for complainers and improved complainer wellbeing. Both can also have a positive impact in terms of preventing complainer withdrawal from the prosecution process.

As well as the positive benefits to complainers arising from ILR, participants noted that complainer wellbeing might be adversely affected if introducing ILR had the knock-on effect of introducing delays into the progress of the case.

System measures relate to service outcomes, such as substantive legal outcomes, the take-up of the service, or case processing times. These can be informative but the substantive legal outcome, in particular, is a measure that needs to be regarded with caution, as complainers may feel an increased sense of agency even if the outcome of the hearing is not the one that they wanted.

There is a lack of transparency around the evaluation of existing ILR schemes. Publicly available data is almost non-existent, which limits the opportunity for an international community of practice to develop.

The Scottish context

There are a number of features of the Scottish context that have important implications for the design of an ILR service and which mean that models from other jurisdictions cannot simply be transplanted into the Scottish criminal justice system.

The professional ethical rules which govern how lawyers may obtain clients in a particular jurisdiction dictate the contours of what is possible in terms of the precise way in which referral mechanisms operate.

In the Bill, ILR is proposed in respect of sexual history and character evidence applications (section 275 applications), unlike the majority of the jurisdictions we studied where it is only available in respect of applications to access sensitive records. Many section 275 applications are opposed, and the policing of the boundaries of permitted applications remains a contentious feature of Scottish practice.

The Scottish Legal Aid Board administers publicly funded legal assistance, but does not, within the criminal justice system, with the exception of the Public Defence Solicitors’ Office, itself employ salaried lawyers to provide it. There is only limited free legal advice available for complainers in sexual violence cases in Scotland at present. No comprehensive state-funded service currently exists.

Only advocates and solicitor-advocates have rights of audience in the High Court of Justiciary, where the majority of section 275 applications are considered and they require to be instructed by a solicitor. We were told by representative bodies for Scottish solicitors that an ageing demographic of criminal legal aid defence solicitors and fewer new trainees and early career solicitors coming into the profession has led to a lack of available solicitors to undertake criminal defence business.

Key conclusions

Referral pathways

Effective communication with complainers appears critical to the success of ILR in practice: the proposal contained in the Bill to allocate responsibility to the Crown for informing a complainer of their rights to ILR in Scotland at section 275 hearings is logical, sensible and in line with comparative international practice. That said, scrutiny requires to be applied to their effective performance of this role, given its importance to the uptake of ILR and to trauma-informed practice. In view of our research findings regarding concerns about the Crown’s current practice in relation to communication with complainers, a short-life working group could be established at the earliest opportunity to specifically address the methods and means of communication, and other matters related to ILR service delivery, drawing upon examples of best practice elsewhere.

Communication with complainers should be timeous in order to facilitate effective delivery of ILR: swift action by the prosecutor in terms of contacting the complainer following the triggering event is of the utmost importance to the effective operation of an ILR scheme, especially given the time parameters within which ILR must be provided. It is clear from the data collection that complainers should be contacted as soon as possible by the Crown and provided with the necessary information to achieve effective ILR delivery. It seems feasible that the Crown might attempt to do this no later than three working days after the triggering event i.e. the lodging and/or intimation of the section 275 application. If additional resources are required for them to perform this role, that might be considered given the importance of efficiency, as identified in the research, to minimise delay in providing the necessary information.

The role of docket and other witnesses needs to be carefully considered: there is no obvious way to ensure consistent and effective representation of such witnesses via consistent referral pathways under the proposed system of ILR, other than by amending section 274 of the Criminal Procedure (Scotland) Act 1995 to ensure said witnesses are now protected by this provision. Careful consideration is needed as to whether this provision may require amendment to ensure consistency of provision.

Relationships with stakeholders

It is important that a diverse group of criminal justice stakeholders and those with lived experience be consulted as service design plans develop: other international models of delivery demonstrate the value of a forum of communication by which issues can be aired post-implementation and can be addressed. To this end, the Scottish Government might similarly ensure that all criminal justice stakeholders are involved in service design and that design processes include the perspectives of victim-survivors of sexual violence.

It is worth considering the extent to which the provisions in the Bill on the disclosure of evidence may need amendment: the research findings demonstrate the importance of developing criminal procedure in this area. For example, the independent legal representative might apply to the court for any disclosure they consider necessary within seven days of intimation (or other specified period), of the application or later than that on cause shown. Thereafter the Crown and defence could have seven days (or other specified period), or later on cause shown, within which to intimate any objection to the requested disclosure. In the absence of any objection the court should be able to determine the matter in chambers, administratively, through an interests of justice test. If the disclosure sought is opposed than the matter will require to be heard at the Preliminary Hearing or other administrative hearing with consideration of the substantive section 275 application continued to a further hearing. Relevant legislation and guidance could also be amended to regulate the independent legal representative’s use of disclosure obtained during their instruction.

Written guidance serves to effectively delineate different roles and responsibilities: introducing ILR into the criminal justice system has the potential to confuse, especially where different agencies are involved in communicating or providing services to complainers. There is a need to ensure that all stakeholders are aware of their own roles and responsibilities and the roles and responsibilities of others. There is also a need to simplify as far as possible the number of different agencies that are communicating with complainers. Written guidance, or a memorandum of understanding, will help to effectively delineate different roles in the space.

It is important to manage expectations and ensure clarity about the limitations and extent of the provision of ILR and its role in the adversarial system: lawyers face challenges when complainers seek advice and representation, or otherwise need support, outside of the confines of their role. Ensuring clarity from the outset about the extent of the service is important. Having partnerships in place with wider support services may help to facilitate meaningful signposting and minimise referral fatigue.

Trauma-informed practice

Timelines for ILR referrals should be clearly specified: trauma is exacerbated where complainers do not have sufficient time to receive advice and representation, and to build trust and confidence with their legal representative, given the highly sensitive nature of the issues involved in section 275 applications. As set out above, complainers must be timeously notified of their right to representation. This might be done, for example, immediately following the triggering event and no later than three working days from the triggering event. The Crown already has channels of communication with complainers and docket witnesses. The research highlights that, should there be communication failures in this respect, the entire system of ILR could be adversely impacted. Consideration might therefore be given to judicial oversight of the matter at the Preliminary Hearing or First Diet, through inclusion of a question on the Written Record of Preparation relating to the matter.

Specific training in trauma-informed lawyering should be delivered by those with appropriate background expertise: for example, counsellors, psychologists and/or other mental health specialists should design and deliver training, together with lawyers who bring experience from practice of advising and representing survivors of sexual violence. For those acting in this space, the commitment to trauma-informed training should be ongoing and not simply delivered once via an online module without considering its importance to ongoing reflective practice.

Reflective practice should be built into models of supervision and carefully monitored: the data collection made clear that reflective supervision helps to ensure advice and representation is refined to ensure trauma-informed principles are adhered to. It was also noted as an important part of minimising the risk of vicarious trauma and burn-out. Monitoring reflective practice will be easier in salaried models of delivery.

Allocate resource to embedding trauma-informed practice: discrete training, as well as reflective supervision, is necessary for successfully embedding trauma-informed approaches and minimising vicarious trauma. The research highlights the importance of time and resource for successfully embedding a trauma-informed approach, drawing upon multi-disciplinary expertise related to sexual violence.

There is value in supporting the establishment of a community of practice for lawyers delivering ILR: this will promote the exchange of learning around best practice and provide support to minimise vicarious trauma. It may improve rates of long-term retention in roles and help lawyers to develop specialist skills in trauma-informed practice.

Models of delivery

A salaried model appears to be the most appropriate model for delivery of ILR in Scotland: it affords the opportunity to develop a concentration of specialist expertise in the provision of ILR, monitor casework, build capacity and provides comparatively more time to build trust with clients and take a trauma-informed approach. It also facilitates the ability to act more quickly under pressure of time, such as where an application is made late, and should provide a team approach and wider support for lawyers, which minimises burnout and promotes lawyer retention. It was the model associated with the most benefits and fewest drawbacks in our data collection, and its disadvantages are easier to address than those of the private practice model.

Salaried models located in not-for-profit settings bring a number of added benefits: these include the availability of wider support services, ensuring more holistic service provision, being able to draw upon wider expertise in victim support and relying on wider networks in knowledge exchange and developing best practice.

An ad hoc panel of legal aid lawyers will overcome some of the challenges of the salaried model: many of the disadvantages of the salaried model can be overcome with some provision for ad hoc private practice lawyers. These do not have to be heavily relied upon, as in some models, rather they would be needed on an ad hoc basis should conflicts of interest arise or specialist expertise be needed on a complex case. An ad hoc panel might also help to cover a wider geographic region on a case-by-case basis should in-person representation be required in more remote areas. Thought will require to be given by policy makers, in collaboration with the profession and the Scottish Legal Aid Board, as to how this best can be facilitated.

Skills and expertise

Developing and maintaining specialist expertise in the field of ILR is critical to success regardless of the delivery model adopted: the data collection shows the delivery of ILR requires a discrete skillset and specialist trauma-informed approach. It is important that it is valued as a specialist service rather than being absorbed into other types of criminal legal aid delivery.

Rates of pay need to be carefully benchmarked to attract suitably qualified candidates: it is important that lawyers bring appropriate knowledge and expertise. Candidates with at least five years post-qualification experience, ideally with a background in criminal law and qualification as a solicitor advocate, would be most appropriate for the role in the Scottish context. Rates of pay should be reflective of this level of expertise and experience and carefully benchmarked with equivalent civil service and/or public sector legal roles.

A salaried model comprised of some in-house solicitor advocates may be appropriate for meeting requirements in relation to rights of audience: independent specialist pleaders with rights of audience in the High Court of Justiciary might be appropriate for the effective delivery of ILR. Recruitment of solicitor advocates would meet the requirements of practice and work well alongside a panel of other solicitor advocates and counsel to provide ad hoc specialist support as needed. Complainers’ choice of representation needs to be respected in this context, as far as is possible.

Evaluation

An important measure of the success of an ILR service is the impact that it has on complainer wellbeing: this was the overwhelming consensus of those interviewed. This could be quantitively assessed – at least to an extent – by comparing the satisfaction levels of two separate groups of complainers who have engaged with the criminal justice system with and without ILR. The most valuable data will come, however, through qualitative methods.

Quantitative measures of the success of ILR will also be informative: these might include substantive legal outcomes, the number of complainers engaging with the service or case processing times. The first one in particular, however, needs to be regarded with caution. Client satisfaction may be positive even where the outcome was not the one that the complainer desired, if it increased the sense of agency that the complainer felt they had over the issue.

It would be beneficial for evaluation and learning around the ILR scheme to be made publicly available so it can be shared across different schemes: publicly available data relating to the evaluation of ILR schemes is almost non-existent. This limits the extent to which stakeholders in one jurisdiction can learn from another. As such, it would be beneficial to establish a wider international community of practice among comparable jurisdictions that operate ILR schemes.

ILR and legal practice

It is important to consider the appropriate scope of initial delivery of ILR based on the key findings of this report: it may be appropriate to deliver ILR first in the High Court of Justiciary, this being where most section 275 applications occur. This would allow experience to be developed in the delivery of ILR before a fuller roll out. This approach also benefits from the fact that ILR would occur at first in a forum involving advocates and solicitor-advocates, and the oversight of Senators of the College of Justice. A phased commencement of relevant provisions could be restricted to the High Court sitting in certain locations, and potentially include specified Sheriff Courts.

It is important to consider how ILR might be provided at trial where a late application is made: where a section 275 application is made late, at trial, on special cause shown, there is no principled basis as to why ILR should not be delivered in that context for complainers. The experience of Ireland shows that a system can be designed to facilitate such representation with minimal delay, as long as sufficient resources are allocated in order to make it work. A salaried model of provision (potentially with an in-house solicitor advocate) might be agile enough to act in such circumstances with very little delay should the complainer wish to instruct a representative. It does, however, become more difficult to protect complainer choice of representative, without unduly delaying the trial.

The lawyers who provide ILR will require to perform their role carefully and ongoing training will be required: there is a risk of giving the impression of coaching. However, there are appropriate ethical and professional rules in place which should mitigate the risk of same, as long as lawyers are alive to the issues.

There will be instances where matters can be easily dealt with by way of written submissions: where the complainer consents to what is sought in a section 275 application or where matters are otherwise uncontentious, written submissions to the judge in the context of agreement between the parties will minimise delay and remove the requirement for a lawyer to attend a hearing dealing with a section 275 application in these circumstances. It is worth paying further attention to the form of written submissions and the procedural mechanisms which might standardise their use in practice. Where an application is to be opposed by the complainer, attendance of their legal representation will always be appropriate.