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

Chapter 2: Research Methods

2.1 Introduction

The research was undertaken using two main methods: a literature review and semi-structured interviews, each of which is outlined below.

2.2 Literature review

The literature review proceeded in two stages. An initial phase involved identifying comparable jurisdictions that operate (or have operated in the past) systems of ILR and/or ILA for complainers in sexual offence prosecutions. Our remit was to consider only jurisdictions that have an adversarial system of proof and provide some measure of ILA and/or ILR relating to the admission of evidence in criminal proceedings. This resulted in the identification of the following jurisdictions: Australia, Canada, England and Wales, Ireland, Northern Ireland. These, along with Scotland, will be discussed in more detail in the remainder of this report.

Both Canada and Australia operate a federal system. In Australia some states and territories have introduced ILR, but others have not and the report will focus on three jurisdictions that have done so, namely New South Wales, Queensland and Victoria.^[46] In Canada the legislative provisions entitling complainers to be represented in respect of certain applications are federal (contained in the Canadian Criminal Code) but the provision of legal services differs between jurisdictions and this report considers British Columbia and Nova Scotia specifically.

As noted in chapter 1, the Victims, Witnesses, and Justice Reform (Scotland) Bill provides for ILR in relation to applications to admit a complainer’s sexual history or character evidence. At the time this research was undertaken, only two of the jurisdictions identified – Ireland and Canada – offered ILR in the context of applications to admit sexual history evidence. It would, however, be remiss not to include the other jurisdictions in our analysis, because they offer important learning points. This is especially the case for the Australian jurisdictions. While the specific type of evidence for which ILR is provided is different – sensitive records evidence – there are very strong parallels with sexual history evidence. Both types of application relate to the admission of evidence about the complainer’s past conduct where the complainer has a legitimate interest in keeping that information private that is separate and distinct from the interests of the prosecution. In both instances, there are legal provisions in place that allow for such applications to be made by the defence pre-trial (albeit that applications might also sometimes arise during the trial). The balancing exercise that the court must undertake in deciding whether to admit the evidence, while not identical, is similar for both types of evidence (very broadly speaking, balancing the complainer’s privacy interests against the probative value of the evidence). Two of the Australian jurisdictions (New South Wales and Queensland) have very well-established systems of ILR for sensitive records evidence and there is much that can be learned from them.

The other two jurisdictions – England and Wales and Northern Ireland – did not provide an established system of ILR in relation to either sensitive record evidence or sexual history evidence applications at the time this research was undertaken.^[47] They do (or in the case of England and Wales did in the past) provide ILA to complainers in relation to such matters. Northern Ireland as we explain below occasionally permits an ad-hoc system of ILR in relation to sensitive records applications seemingly based on judicial discretion. These jurisdictions are included in our analysis in any event because here too there are important learning points that are of relevance to the provision of ILR in the Scottish context. This is especially so in terms of the model of delivery that is utilised, such as whether the service is provided by salaried lawyers or lawyers working in private practice and related practical issues such as recruitment and information sharing with the prosecution. Likewise, there is valuable learning across each jurisdiction in relation to the provision of trauma-informed legal advice and representation.

A second phase of the literature review involved a more detailed examination of the selected jurisdictions (including Scotland) in order to consider in more depth the detail of the schemes that are available. Our goal was to identify key features of comparative models; different methods of categorisation; and respective types of funding in order to produce a critical evaluation of such models which takes into account relevant factors relating to stress and capacity. The following types of literature were consulted:

• Legislation and Procedural Rules: criminal law, evidence and procedure; relevant statutory legal aid rules.
• Academic literature: relevant monographs, edited collections and articles in leading journals studies (e.g. Criminal Law Review, International Journal of Evidence and Proof, Journal of Law and Society).
• Grey literature: reports (including from Parliamentary committees and independent inquiries), working papers and evaluations, case studies and short reports including consultation responses published by charitable organisations and practitioner associations (e.g. Victim Support Scotland, Rape Crisis Scotland, the Law Society of Scotland and the Faculty of Advocates, and equivalent bodies in other jurisdictions).
• Web content analysis: of relevant information provided by charities and service providers.

2.3 Semi-structured interviews

The second research method utilised was semi-structured interviews. These were necessary because the available literature on the ILA/ILR schemes we wished to analyse was limited and shed little light, for example, on the benefits and drawbacks of operating an ILR scheme in a particular way. Semi-structured interviews were needed to gain an in-depth insight into the schemes in question and allowed us to follow up and explore points in a way that would not have been possible using, say, a questionnaire survey. Most interviews were undertaken with a single participant. However, where there were two or more people within the same organisation who were all involved in the same ILR scheme, these participants were on occasion interviewed as a group. This proved to be a useful way of gaining insight into the scheme in question as participants could expand on (or occasionally question) points made by the other interviewees. This was only ever done with participants working in the same organisation. The wider use of focus groups as a research method was considered but rejected, as we needed to provide the time and space for interviewees to give in depth responses on their particular ILA/ILR scheme. It would also have added considerable complexity to set up focus groups across jurisdictions, given the time differences involved.

We undertook 30 semi-structured, in-depth interviews, each of approximately an hour long, involving a total of 41 participants. The characteristics of our interviewees were as follows:

International comparisons

• 20 legal professionals/service managers involved in the management or delivery of ILR in the aforementioned comparable legal jurisdictions
• 12 policy makers/other stakeholders with experience of designing/operating ILR schemes
• One legal academic with broad expertise in the topic of violence against women and girls and independent legal representation

Scotland

• Two legal professionals with experience of sexual offence work
• Seven other criminal justice stakeholders including representatives from the Scottish Legal Aid Board; The Faculty of Advocates; The Scottish Solicitors Bar Association; the Law Society of Scotland; the Crown Office and Procurator Fiscal Service; and the Scottish Courts and Tribunals Service

All of our participants were selected on the basis that they had professional experience that was relevant to the study. The decision was taken not to interview complainers who had experience of using (or who might use) ILR services. This was a decision taken primarily because of the relatively short time frame of the project. Including service users would have added complexity in terms of the ethical issues involved and the time that would have been needed to identify service users in multiple jurisdictions outside Scotland. It is acknowledged that this is a limitation of the research.

The majority of the interviews were conducted online, using a secure platform (either Teams or Zoom), depending on the interviewee’s preference. The interviews were all conducted within the timeframe of September 2024 to February 2025. With the interviewees’ permission, the interviews were recorded and they were then transcribed by a professional transcriber. Interviews were coded by theme.

2.4 Ethical considerations

No particular ethical considerations arise in respect of the desk-based research which included only material that is in the public domain. In relation to the semi-structured interviews, we sought and obtained ethical approval from the University of Glasgow College of Social Sciences Research Ethics Committee, which follows UKRI research ethical guidance.

The project was judged to be one involving low risk, as we did not plan to interview any potentially vulnerable people or to share confidential information beyond the consents given. The interviewees were all practice-based ‘elite’ research participants based either in service delivery, policy or academic environments.

A minor small risk was identified that in talking about service delivery in client cases some practitioners may inadvertently breach confidentiality and/or legal professional privilege, but this did not happen in any of the interviews that were conducted.

Participants were provided with information sheets and consent forms outlining different levels of consent to protect anonymity for those participants who wished not to be identified (while acknowledging and communicating the risk of nonetheless being identifiable). We fully anonymised and redacted transcripts for those participants who wished to remain anonymous. We undertook a data protection impact assessment which was approved by the University of Glasgow College of Social Sciences Research Ethics Committee and drafted a privacy notice, which was provided to all research participants.