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

Chapter 3: Comparable Models of ILA/ILR Delivery

3.1 Introduction

In this chapter, we outline the key features of comparable systems of ILA/ILR, namely those in Canada, England and Wales, Ireland, New South Wales, Northern Ireland, Queensland and Victoria. These jurisdictions were selected for analysis on the basis that they all have (or have had in the past) an operational system of ILA or ILR and are similar enough to Scotland (in terms of being common law, adversarial systems of criminal justice) to provide useful comparison. At the time that this research was undertaken, only Canada and Ireland provided ILR in relation to sexual history evidence applications. The Australian jurisdictions provided ILR for sensitive records evidence and Northern Ireland and England and Wales provided (or had provided in the past) ILA for complainers in sexual offence prosecutions. These jurisdictions were included in our analysis because the context in which they are offering ILR or ILA is sufficiently similar to ILR for sexual history evidence to provide important learning points.^[48]

The analysis in this chapter is primarily informed by the literature review,^[49] but it is also informed by the semi-structured interviews,^[50] where they provided information about how the various schemes operated that complemented the information available in published sources. Where we refer to information gathered from the semi-structured interviews, this is not attributed to individual sources in the same way as it is in chapters 4 to 9. This is because in order to protect their anonymity, each interviewee was given a code that did not reference the jurisdiction they were from (e.g. “participant 1”). If we used their interview code in this chapter, in the context of the specific jurisdictions, this anonymity would be compromised.

As noted above, each of the selected jurisdictions is in a different position with regard to the availability of ILR. In Canada, the law of evidence is found at federal level in the Canadian Criminal Code, which entitles complainants in sexual offence cases to be represented by counsel in respect of submissions for production of personal records and the admission of such records or sexual behaviour evidence. Although governed by the same evidential provisions, the individual Canadian jurisdictions have each implemented ILA/ILR separately to varying degrees and an overview is provided of British Columbia and Nova Scotia below.

In England and Wales at present there is no provision of ILR in relation to either personal records or sexual history evidence (although such a system has been proposed by the Law Commission of England and Wales).^[51] There have been two pilot schemes of ILA provision which will be discussed.

Ireland has an established system of ILR in relation to the admission of sexual history evidence. It also provides for ILR in relation to applications to obtain counselling records, although the statutory provision whereby the court can determine applications to disclose counselling records is “seldom used”, with it being “the norm” for complainants to waive their right to a court hearing and to instead consent to disclosure.^[52] Given the small number of cases relating to ILR at these hearings, the focus of our analysis in respect of Ireland relates to sexual history evidence.

Northern Ireland has a national system of ILA for complainers in serious sexual offence cases. It also occasionally permits an ad-hoc system of ILR in relation to sensitive records applications seemingly based on judicial discretion. At the time of writing, it did not have a more formal system of ILR, but it was consulting on the possibility of introducing pre-trial ILR for complainants in serious sexual offence cases.^[53]

The position regarding the three Australian jurisdictions requires a more detailed explanation. Australia has six states (NSW, Queensland, South Australia, Tasmania, Victoria and Western Australia) and three territories (ACT, Northern Territory and Jervis Bay Territory), each of which has its own government and legal system. Legal responses to sexual assault^[54] have developed independently in each jurisdiction and, unlike in Canada, each jurisdiction has separate legal provisions on the law of evidence. For this reason, they will be treated as separate jurisdictions in the reminder of the report.

Two Australian jurisdictions – New South Wales and Queensland – have established systems of ILR in respect of applications to access sensitive records. In addition, the Australian Federal Government intervened in this area as part of the National Plan to End Violence against Women and Children 2022-2032,^[55] and in 2023 announced funding for pilot programmes in three jurisdictions aimed at improving the justice service in sexual assault cases.^[56] The pilots are taking place in Victoria, Australian Capital Territory (ACT) and Western Australia and include funding for ILR in relation to applications to access sensitive records. Only one of these jurisdictions was selected for analysis (Victoria), given time constraints and the fact that, at the time of the research, the pilot was in its early stages, so there was reduced potential for learning compared to that which could be gained from more established schemes. The national pilot will be evaluated to measure its success and inform the development and funding of future legal services for victims and survivors across Australia.^[57]

In parallel to the pilots, at the request of the Australian Government, the Australian Law Reform Commission (ALRC) undertook an inquiry into justice responses to sexual violence, aimed at harmonising the law across Australia. The ALRC recommended that ILR be offered in all Australian states and territories “when applications are made to subpoena or inspect materials which may contain a complainant’s personal, sensitive, or confidential information (including sexual assault counselling communications)”.^[58] It stated that at this stage it did “not consider there is a need to go further”^[59] and recommend the provision of ILR in relation to applications to admit sexual history evidence. It considered these applications to be more complex because of the complainer’s status as a witness and stated that it had “not had sufficient time to consult about the legal implications of extending representation to those applications”.^[60].The ALRC also recommended that the Australian Government, together with state and territory governments, should fund and support independent legal advisers nationwide to provide ILA to sexual offence complainants.^[61]

All of this means that there are, at the time of writing, five Australian jurisdictions that provide ILR for complainants in sexual assault cases. These are New South Wales and Queensland (where ILR is established) and Victoria, ACT and Western Australia (where it has only recently become available as part of the national pilot). In all of these jurisdictions, the provision is only available in relation to applications to access sensitive records. At the time of writing, no Australian jurisdiction provides ILR to complainants in relation to applications to admit sexual history evidence.

Before proceeding, the position of South Australia is worth briefly noting. Here, the Commissioner for Victims Rights can intervene in legal proceedings on a victim’s behalf. The Commissioner has a general power under the Victims of Crime Act 2001 to “assist victims in their dealings with prosecution authorities and other government agencies”.^[62] It is not in any way specific to sexual assault cases or sensitive records/sexual history evidence. As of 2019, the Commissioner had engaged legal counsel to act for victims on over 200 occasions,^[63] but it does not appear to have been specifically used in the context of sexual assault/sensitive records.^[64] The previous Commissioner has stated that these provisions “augment” the “entitlement to legal representation available to victims of sexual assault when an application is made to disclose details of a protected communication that happened in a therapeutic context”.^[65] The reference to the “entitlement” of victims to legal representation here is curious because the rights of the complainant in relation to sensitive records are limited in South Australia compared to other Australian jurisdictions. The court, in determining applications to disclose/admit protected communications, should have regard to “the attitude of the victim or alleged victim to whom the communication relates (or the guardian of the victim or alleged victim) to the admission of the evidence”,^[66] but there is no requirement in the Evidence Act for the complainant to be notified that an application has been made and the complainant does not have standing to make submissions in relation to such an application.^[67] The South Australian Government is at the time of writing in the process of consulting on whether this should change.^[68] Notwithstanding, representation via the office of a Victims Commissioner is not a model that is likely to be emulated in Scotland, so will not be discussed further here.

This chapter is primarily descriptive, setting out the manner in which each of these systems operates (or operated), although where available we have outlined analytical literature or data relating to the efficacy of the schemes. Detailed analysis of the advantages and disadvantages of the different systems is contained in chapters 4 to 9.

Finally, it should be noted that while the information in this report was correct at the time of writing, ILR for sexual offence complainers is a rapidly developing area of practice. Almost all the jurisdictions we examined had law reform processes underway which might lead to change in terms of the provision of ILA and/or ILR. That said, this does not affect the learning points that can be taken from the operation to date of the ILA/ILR systems we examined.

3.2 Canada

3.2.1 Background and legal framework

Provisions in the Canadian Criminal Code entitle complaints in sexual offence cases to be represented by counsel in respect of submissions for production of personal records^[69] and the admission of such records or sexual behaviour evidence.^[70] In each case, if the judge has determined that the evidence is capable of being admissible,^[71] a hearing is to be held (for personal records) to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge or (for sexual behaviour evidence) to determine whether the evidence is admissible.^[72] The complainant is one of the persons who is entitled to appear and make submissions at the hearing.^[73] The right to legal representation is “limited to the four corners of these hearings”^[74] and does not extend to a subsequent trial. An application is made to the court, but the defence must serve the application on both the prosecutor and the complainant at least 60 days before the hearing takes place, although that time period can be shortened by the court in the interests of justice.^[75] The complainant must be informed, “as soon as feasible” by the court that they have a right to be represented at the hearing by counsel.^[76]

While these provisions are federal ones, the provision of advice and representation to complainants varies across different Canadian jurisdictions, albeit with similar models being employed. This reflects the fact that the Criminal Code is federal legislation, while the administration of the justice system is largely the responsibility of the provincial and territorial governments. Canada has ten provinces and three territories of various sizes. In order to illustrate the provision of advice and representation in Canada, this section sets out details on two specific provinces: British Columbia and Nova Scotia. This reflects partly the size of these provinces and the extent to which we were able to obtain information both from publicly available sources and interviews about the various provinces and territories, although we have drawn on information and interviews from elsewhere in Canada in seeking to understand the Canadian system overall.

A 2004 report noted that Ontario was “the only jurisdiction where legal aid is provided for complainants in applications for third party records”, with 40 certificates having been granted in 2003-04 and Legal Aid Ontario believing “that all those who apply and are financially eligible are receiving a certificate”.^[77] A 2018 report suggested that non means tested legal aid was by that point available in a broader range of jurisdictions (Ontario, Manitoba, Alberta and British Columbia, with means tested legal aid available in Nova Scotia, Prince Edward Island and Nunavut), but without further detail.^[78]

Over recent years, many Canadian jurisdictions have developed schemes for providing legal advice to victims of sexual assault, whether or not their cases have been reported to the police. These typically involve a non-means tested right of access to a small number of hours (often up to four hours) of advice from a lawyer, but these schemes do not in themselves involve representation. As detailed below, in 2021 Alberta separately established a scheme where Legal Aid Alberta maintained a panel of roster lawyers who could assist complainants in sexual offence cases with up to ten hours of non-means tested legal advice and support in cases where applications were made relating to their personal records or the use of sexual history evidence.

ILA and ILR services are paid for by a mixture of federal and provincial/territorial funds. At federal level, this funding comes via the Victims Fund, which pays to implement the policy initiatives that come out and that are supported by the Federal Victims Strategy. This includes independent legal advice and legal representation for victims of sexual assault and intimate partner violence. In 2021, the Victims Fund was used to make sure that all states and territories could offer ILA and ILR.

3.2.2 The ILR and ILA schemes

3.2.2.1 British Columbia

British Columbia operates both a system of ILA and ILR. They are administered by two separate organisations.

The ILA aspect is administered by the Stand Informed service in British Columbia and run by the Community Legal Assistance Society.^[79] It was launched in October 2023.^[80] Individuals who have been sexually assaulted in, and who live in, British Columbia, are entitled to up to three hours of legal advice. The lawyer can request an additional two hours if necessary. Initial contact is made with an intake coordinator by telephone or email, who will have a short call with the individual and match them with an appropriate lawyer in 1-2 weeks. A letter is then sent to the individual to sign, forming an agreement between them and the lawyer; the lawyer will then contact them to set up a meeting usually within 1-2 weeks after the letter is signed.^[81] Advice can be provided over the phone or in-person, depending on the preference of the complainant (and the practicalities of doing so). The majority of complainants are happy with telephone advice, but some do prefer in-person.

The ILA itself is provided either by one of the two staff lawyers at Stand Informed or by private practitioners. There is a roster of private practitioners who can be engaged to do the work. To be on the roster, practitioners have to complete a training programme that includes a component of trauma-informed training. Individual complainants can self-refer to the service or referrals can come via other third sector organisations. Where a complainant is referred by a third sector organisation, Stand Informed often seeks the consent of the complainant for information sharing so that they do not have to tell their entire story again.

The ILR component is administered by Legal Aid British Columbia (LABC), who also administer legal aid services in other criminal and non-criminal matters. It has been in operation since 2020. For sexual offence complainants, it is available for sexual history applications and sensitive records applications. It is not means tested. ILR is provided by a roster of around 50 private practitioners across the province, who have to complete some basic training. A programme of mentoring and shadowing so that new lawyers can shadow a senior lawyer doing an application has recently been implemented using Government funding.

Most referrals to the ILR service come from the British Columbia Prosecution Service (BCPS). The BCPS completes a referral form with contact details for the complainant and information about the case. LABC then assign a lawyer to act for the complainant. Referrals can also come from complainants themselves by phoning a helpline. A lawyer is not assigned until court dates are set.

3.2.2.2 Nova Scotia

Nova Scotia operates both a system of ILA and ILR. As in British Columbia, they are administered by two separate organisations.

ILA is accessed via 211 Nova Scotia, a confidential information and referral service. Victims can contact 211 and will be provided with an information package with a certificate number for two hours of free legal advice, including a list of participating lawyers and details of their experience. A further two-hour certificate can be requested for advice from the same or a different lawyer. The scheme does not provide legal representation in court.^[82]

ILR is provided by the Sexual Offence Legal Representation (SOLR) programme, which is delivered in partnership by the Nova Scotia Legal Aid Commission and the Nova Scotia Department of Justice, Victims’ Services. It covers applications for sexual history evidence and sensitive records. Most referrals to the ILR service come from the public prosecution service. The prosecution is under a duty to inform the complainant when an application to admit evidence of sexual history or sensitive records is made. When they do this, they ask the complainant if they would like to be legally represented. If they would, the prosecutor completes a referral form to SOLR with contact details for the complainant and information about the case. Nova Scotia Legal Aid will then arrange for a lawyer to be assigned. A roster of around 20 lawyers in private practice exists for these purposes. The lawyer will then contact the complainant. There are some figures available for the number of cases SOLA deals with.^[83] In 2019-20 this was 38; in 2020-21 this was 46; in 2021-22 this was 66 and in 2022-23 this was 54.^[84]

A pilot programme that will involve a salaried lawyer operating out of Nova Scotia Legal Aid will commence later in 2025^[85] – at the time of writing recruitment to this position was in progress.^[86]

3.3 England and Wales

3.3.1 Background and legal framework

There is at present minimal provision of ILR in England and Wales. A 2023 Law Commission consultation paper on evidence in sexual offence prosecutions noted one instance where the possibility of ILR arises: “a person who is the subject of an application for a witness summons to produce documents can make representations to the court about the application”.^[87] This procedure is only competent post-charge in a criminal case where consent for disclosure has not been provided by the witness. There is limited information about its incidence in practice, and there is no entitlement to legal aid to permit representation for complainants in this context.^[88] The Commission, in that consultation paper, made the following provisional proposals relating to ILR in England and Wales in other contexts:

• That complainants “should have a right to be heard in respect of applications relating to the admission of their personal records or sexual behaviour evidence”.^[89]
• That complainants “should have access to independent legal advice, assistance, and representation in respect of requests and applications relating to personal records and sexual behaviour evidence”.^[90]

Against this current background of there being limited scope for ILR, there have been two pilot schemes (one completed and one ongoing) providing ILA to complainants in sexual offence cases, as detailed below.

3.3.2 The ILA schemes

The Northumbria Sexual Violence Complainants’ Advocate Scheme. This pilot scheme, funded by the Home Office and running between September 2018 and March 2020,^[91] was established with three key aims:^[92]

1) To offer legally informed advice and support for sexual violence complainants undergoing ABE [achieving best evidence] interview.

2) To ensure legally compliant access to the complainants’ personal data, assisting them to negotiate fully informed consent and making representations on behalf of complainants where necessary to prevent irrelevant or excessive material being accessed.

3) To provide legal advice on sexual history applications, assisting the prosecution by ensuring they are fully appraised of the complainants’ interests.

The third of these aims was, however, abandoned before the project went live.^[93] Four legally qualified sexual violence complainant advocates (“SCVAs”) were recruited; all were local solicitors who worked in family law.^[94] Training included input from a senior partner in criminal law at a local firm and the police and Crown Prosecution Service. A multi-agency oversight group with quarterly meetings included input from third sector organisations, independent sexual violence advocates, police, the CPS, defence solicitors and local barristers, with a judge attending as an independent observer.^[95] The nature of the support provided in relation to accessing complainants’ personal data was advice and intervention outside of the court process, although there was one case where the SCVA requested a court hearing and instructed counsel to represent the complainant. In the event, the issue was resolved through mediation, but the judge in the case did state that the complainant “has a right to have time to make representations or be represented during disclosure of their personal records”.^[96]

An evaluation concluded that the pilot had been successful. 83 eligible referrals were made,^[97] with complainants engaging with the service in 47 cases (57%).^[98] The most common support offered was advice on data requests (38 cases), followed by attending ABE interviews (20 cases) and intervention on data requests (18 cases).^[99] The average time commitment by SCVAs per case was 155 minutes at a cost of £725.^[100] The House of Commons Home Affairs Committee later recommended that the Government should further pilot the scheme and consider widening it to encompass legal advice on sexual history applications.^[101]

The London Sexual Violence Legal Advice Pilot. In June 2024, the Mayor of London launched a free legal advice service for complainants in rape and serious sexual offence cases, with referrals to come via the London Survivors Gateway and (in Hackney and Tower Hamlets) the Metropolitan Police.^[102] A pilot had previously been commissioned in February 2023 but had experienced setbacks, primarily with recruitment and retention. The updated model, to run until June 2025, and to be evaluated by the University of Loughborough, was described as comprising:^[103]

a single specialist hub made up of a small team in order to build specialist expertise in this new and niche area of law. The team will consist of two full-time lawyers, paralegal support, legal supervision and training, Counsel’s advice, and operational supervision and management.

3.4 Ireland

3.4.1 Background and legal framework

In Ireland, following changes introduced by the Sex Offenders Act 2001, where an application is made under Ireland’s rape shield legislation to introduce “sexual experience evidence” other than that to which the charge relates, complainants in certain sexual offences trials are entitled to ILR such as to allow them to be heard in respect of the application.^[104] The system of ILR in this context is known as “Separate Legal Representation”. SLR/ILR is available in Ireland for charges of rape, certain offences which relate to sexual acts with children and those that lack mental capacity,^[105] and certain aggravated sexual assault charges and associated offences such as attempted aggravated sexual assault. The type of offences for which ILR is available was extended in 2024.^[106]

Where a sexual experience evidence application is made in a qualifying case, the defence require to give notice of the application to the prosecution, “before, or as soon as practicable after, the commencement of the trial”.^[107] On receipt of this notice the prosecution require to notify the complainant of their entitlement to be heard in relation to the application and to be legally represented, for that purpose.^{[108] As further explained below}, ^{though, the practical burden of arranging legal representation falls on the Irish Civil Legal Aid Board. As of 2024, complainants are also entitled to be legally represented during the giving of evidence in respect of which leave has been granted i.e. they are entitled to have a lawyer present during evidence in chief and cross-examination itself pertaining to sexual history.[109]}

The Act specifies that a judge “shall not” hear a sexual experience evidence application without being satisfied that the SLR provisions have been complied with and also makes provision for the judge to postpone the hearing of the application (and trial if the application is made at that stage) if they are not satisfied that the complainant has been afforded a reasonable opportunity to arrange legal representation.^[110]

Finally, it is worth noting that Ireland has a separate system of non-means tested ILA, provided by legal aid, for complainants in certain sexual offence cases where a prosecution has been raised.^[111]

3.4.2 The ILR scheme

In Ireland, although both solicitors and barristers have rights of audience, by convention complainers receiving ILR are represented by counsel, who are engaged by the Legal Aid Board. Non-means tested legal aid is available to cover the cost of instructing representation for a complainant in this context by virtue of section 28(5A) of the Civil Legal Aid Act 1995. In Ireland legal representation is practically arranged upon the receipt of notice through the DPP contacting the Head Quarters of the Civil Legal Aid Board, who then in turn assign the case to one of Ireland’s regional law centres where a salaried solicitor then takes on the responsibility of communicating with the client and instructing a barrister on their behalf. If the case is being heard outside Dublin then the law centre is selected in respect of its geographic proximity to the court. If the case is being heard in Dublin (where the vast majority of relevant cases are heard) then a list system is operated, and the case is assigned to one of the regional Dublin law centres.

The operation and efficacy of the system of ILR in Ireland has never been the subject of comprehensive empirical review. However, its operation has been explored in a number of reports and research projects that have considered the handling of sexual offences and related matters generally in the jurisdiction. In 2020, Iliadis undertook a small number of interviews with criminal justice professionals and victim support workers (five) and reviewed relevant legislation and reports, concluding that the scheme was a unique response to the problems of admission of sexual history evidence but had several shortcomings. These included the frequently delayed and late issuing of the notice of intention which tiggered the right to ILR, the legal representative’s limited role and the inconsistency in judicial discretion in relation to admissibility in terms of the substantive sexual history provisions, which may hinder its capacity to improve victims’ procedural justice experiences in ways unanticipated from its introduction.^[112]

O’Malley’s Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences commented positively generally on the scheme but also noted that there were certain shortcomings. In particular, the Review found that it was almost invariably junior counsel who would perform the role of ILR, receiving instructions directly from the Legal Aid Board, and that Ireland’s lack of infrastructure relating to pre-trial case hearings at that time meant that very little notice was being provided to counsel performing this role, often leading to the potential for an inequality of arms between the complainant and the other parties to the application.^[113] The Review recommended that the Legal Aid Board should endeavour to instruct counsel of a similar level of seniority to those representing the prosecution and the defence.^[114] Our research interviews have, however, indicated that parity of seniority is not a practical problem. The concern expressed in this regard relating to the lack of pre-trial case management was also highlighted as problematic in several other contexts,^[115] and led to the introduction of preliminary trial hearings in Ireland in 2022. The data we have gathered, however, suggests that significant differences between Ireland and Scotland’s systems of pre-trial case management and admission of sexual history evidence, remain.

The O’Malley Report also concluded that SLR should be extended to cover questioning at trial where an application is granted to admit sexual experience evidence, and argued that the system of ILR should be extended to cover all sexual assault offences. These recommendations were brought forward by the government in Ireland and are contained in section 7 of Criminal Law (Sexual Offences and Human Trafficking) Act 2024 that was passed into law in July 2024.

In terms of other available sources of data in respect of operation of the Irish system of ILR, Leahy in partnership with Dublin Rape Crisis Centre in 2021 published a small study examining the operation of rape trials based on interviews with court accompaniment workers and legal professionals. Leahy’s work, which predated the introduction of preliminary hearings in Ireland, echoed the findings of the O’Malley Report, with interviewees reporting that the system of ILR then in operation often did not permit counsel sufficient time to explain matters which often led to stress on the part of complainants and an inequality of arms between parties, given the availability of counsel.^[116]

Leahy concluded cautiously that the consensus of those interviewed in relation to the rape shield provisions in Ireland (and by the implication the system of ILR) was that it was working well in the sense that only relevant evidence was being admitted, but that further empirical research was undoubtedly required to understand whether this was in fact true or not.^[117] Finally, Keane and Convery considered the Irish system of ILR in 2020 and noted that various criminal justice stakeholders that they spoke to were positive about the system of ILR in operation but again noted the impact of lack of pre-trial procedure.^[118]

Ireland provides a highly topical example of how a publicly funded system of ILR can be implemented for complainers in respect of sexual history and character evidence applications. As indicated, however, the system has never been the subject of comprehensive empirical analysis, and as will become evident in later sections there are marked differences in systems of pre-trial case management between the jurisdiction and Scotland.

3.5 New South Wales

3.5.1 Background and legal framework

In New South Wales, ILA and ILR has been available since 2011 in relation to the disclosure of counselling communications. In terms of the relevant legislation, the Evidence Amendment (Confidential Communications) Act 1997 (NSW) amended the Evidence Act 1995 (the amendments commenced on 1 January 1998) to protect the counselling communications of sexual assault complainants. The two key protections include a judicial discretion to allow the courts to exclude evidence of confidential communication and a rebuttable presumption that confidential communications made to a counsellor by a victim of sexual assault should not be admitted into evidence. Sexual assault communications privilege (SACP) provisions were later incorporated into Part 5, Div 2 of the Criminal Procedure Act 1986 (NSW). The scope of the privilege is wide and applies in all criminal cases, including pre-trial proceedings.

Further reforms were introduced in 2010 by way of the Courts and Crimes Legislation Further Amendment Act 2010, which inserted new sections 297–299D into the Criminal Procedure Act. These provisions enhanced complainant participation in several ways: they strengthened the standing of the complainant in criminal proceedings if a document is sought to be adduced that may disclose a protected confidence;^[119] required parties to seek leave from the court (ordinarily by subpoena) to compel production of privileged materials;^[120] and added to the range of factors that the court must consider before granting leave to disclose records.^[121]

When an application is made by the defence to adduce a protected confidence, the prosecutor must ensure that a copy of the application is given to the complainant.^[122] The court cannot decide an application for leave until at least 14 days after notice has been given to the complainant,^[123] although this rule can be waived by the court in various circumstances, including where the complainant consents or where there are exceptional circumstances.^[124]

Importantly, the new provisions also require the court to ensure that the complainant has been given an opportunity to seek legal advice:^[125]

If it appears to a court that a witness, party or protected confider may have grounds for making an application under this Division or objecting to the production of a document or the adducing of evidence, the court must satisfy itself (or if there is a jury, in the absence of the jury) that the person is aware of the relevant provisions of this Division and has been given a reasonable opportunity to seek legal advice.

Evidence relating to sexual history (termed sexual experience or sexual activity, or lack of sexual experience or sexual activity) is inadmissible following section 294CB of the Criminal Procedure Act 1986. Exceptions apply, for example, if the sexual activity or experience was “at or about the time of the alleged prescribed sexual offence” and “forms part of a connected set of circumstances”.^[126] It has been noted that the NSW system operates on a “restrictive statutory basis”, rather than affording discretion to the trial judge, however, judges do have some limited discretion where the probative value of the evidence might outweigh its prejudicial effect.^[127] Unlike the provision of advice and assistance for counselling records, no such state funded provision exists in relation to independent legal advice or representation relating to sexual history evidence in NSW.

3.5.2 The ILR scheme

The changes to the law in 2010 that strengthened privacy protections for victims of sexual assault also introduced a free legal service hosted by Legal Aid NSW. The Sexual Assault Communications Privilege (SACP) Service, established in 2011, provides lawyers for victims in criminal and Apprehended Violence Order (AVO) cases. All sexual assault victims, whether child or adult, who need legal help in relation to the communications privilege can access a free lawyer – the service is not means tested.^[128]

The service extends to all “protected confiders”, which includes other professionals who may want to prevent or restrict the disclosure of private records, for example, GPs, psychologists, counsellors and education providers. Advice can also be provided to complainants who “wish to consent to the release of private documents in an informed way”.^[129]

The majority of referrals to the SACP service come from the Office of the Director of Public Prosecutions (DPP), although some come through other sources, such as the police. Before the DPP makes a referral, they first contact the complainant to seek their consent for this: “[the ILR providers] don’t cold call people ever, for obvious reasons”. This, it was stated, also “stops people from giving us hospital passes with uncontactable people and then going, oh, we tried to refer them. Because … some complainants are really traumatised, like, they just vanish.” Once consent is obtained, the prosecutor completes a referral form that has “all the basic information we need”. Once this is received, the SACP service contacts the complainant using the contact details provided on the referral form.

The majority of referrals are dealt with by SACP in-house salaried lawyers – three are employed for this purpose. Where the in-house lawyers cannot assist, either due to a conflict of interest,^[130] or capacity issues, Legal Aid NSW can make grants of aid for representation by private practitioners. A panel of practitioners exists for this purpose, who must have completed specialist training. When it is necessary to engage a private practitioner:

… we just send a text out to all of our panel and just say there’s a matter, it’s on this day, this is the name of the accused, so they know if they’ve got a conflict because they might have appeared for this before. This is when it’s in court. And the first person to respond gets it.

SACP lawyers themselves have received specialist training to enable them to provide “advice and assistance”. They “speak only on behalf of the complainant” and can also “assist the court on the operation of privilege and the complainant’s right to privacy”.^[131] SACP also provide an extensive court guide and legal information on the subpoena process.^[132] A separate service exists for children and young people.

Since 2015 New South Wales has operated a fused legal profession. Although there is a single admission process to be licensed as a “legal practitioner”,^[133] some lawyers register as barristers (or were barristers prior to 2015) and there is a Bar Association. All legal practitioners have rights of audience in all courts. In practice, most ILR is provided by solicitors, with counsel being instructed in complex cases or where the defence has engaged counsel. As one interviewee put it: “I’ve appeared before and won before against senior counsel on these but the level of deference that’s offered to them by the court can be quite annoying.”

SACP provision exists both in relation to criminal matters, AVOs and some civil matters. In response to a Discussion Paper published by the Attorney General,^[134] the Law Society of NSW proposed an integrated service for victims of family, domestic and sexual violence. It was argued that this would provide legal advice that better appreciated the interplay across different areas; and ensure that complainants did not have to unnecessarily repeat their experience of sexual assault.^[135]

In terms of numbers, the SACP service dealt with 190 referrals in 2023.^[136] Approximately half of the referrals involved legal representation – the others were advice only. It is estimated that around half of these clients are children. There is no publicly available evaluation of the SACP service.

3.6 Northern Ireland

3.6.1 Background and legal framework

Northern Ireland (NI) launched a state funded ILA scheme in March 2021 to assist complainants in serious sexual offences, following a recommendation set out in the Gillen Review.^[137] The Gillen Review expressly considered the issue of “separate legal representation” (SLR)^[138] and found that it would be “eminently sensible” to introduce a right to SLR to oppose cross-examination on previous sexual history and oppose disclosure of personal medical records. Gillen noted more generally that a “measure of legal advice to explain the complexities of, and the legal developments occurring in, the legal process” should be available from when a matter is first reported to the police up until the commencement of the trial, although not during the trial itself.^[139]

The SLR recommendations were made in the context of a proposed enhanced advocacy scheme. Notably, the review strongly recommended that NI Department of Justice advocacy scheme “should borrow heavily” from the Scottish national advocacy service, especially in supporting complainants to understand their motivation for not proceeding with the criminal justice process.^[140] However, it also expressed the importance of maintaining a clear distinction between legal and non-legal representation.^[141]

In terms of the legal framework, the Criminal Evidence (Northern Ireland) Order 1999 governs special measures (including video recorded evidence)^[142] and complainant’s sexual history evidence.^[143] The disclosure of medical and other sensitive records is governed by the Criminal Procedure and Investigations Act 1996. The Gillen Review made no specific recommendations for evidential reform in these areas save for general measures to encourage a more “robust judicial attitude to restricting cross-examination of previous sexual history”, and wide-ranging proposals to tackle delay and non-compliance related to disclosure.^[144]

Practice Direction 2/2019 (Case Management in the Crown Court including Protocols for Vulnerable Witnesses and Defendants) sets out the process for the disclosure of third-party material. The disclosure process includes pre-trial hearings for applications made by the defence team for medical records and other personal information.^[145] Where the defence wishes to access such records, they must serve a copy of the notice on the prosecution. The prosecution should then “take steps to ensure that the complainant is notified of the application and to advise them of their entitlement to make representations”.^[146] At this stage, the prosecution also sends the complainant details of the Sexual Offences Legal Advisers Scheme (SOLA) service described below and sets out how the complainant can contact them. In determining applications, it is a matter for the judge to determine what information is relevant and proportionate. The NI Minister for Justice commented in March 2024 that “operationally” there are measures “under review” to limit the scope of material disclosed during rape trials to what is necessary and proportionate.^[147]

The Victim Charter of NI gives victims the right to be informed about the progress of relevant proceedings, the outcome of proceedings and any special measures which may be available.^[148] The Victim Witness Care Unit aims to provide a single point of contact for complainants, as does the Police Service of Northern Ireland (PSNI) and the Public Prosecution Service (PPS).^[149] An advocacy support service has also been available to victims of domestic and sexual abuse since 2020.^[150] While the Victim Charter allows for the instruction of counsel in order to gain access to information about the progress of a case, it does not provide standing at trial.

3.6.2 The ILA scheme

The implementation of the Gillen recommendations is led by the Strategic Justice Group on Sexual Harm, overseen by the Criminal Justice Board of NI. It is worth noting that the implementation plan for the Gillen Review did not expressly mention ILR for protection of complainants’ personal records or sexual history. Rather, against the strategic priority area of “separate legal representation for complainants pre-trial” it proposed high level implementation by way of:

• Provision of agreed legal advice pre-trial to ensure complainants have advice in relation to their privacy.
• Provision of representation to ensure complainants are in a position to make informed decisions and understand their rights.^[151]

Following this plan, the Sexual Offences Legal Advisers Scheme (SOLAs) was established as a three-year pilot in March 2021. It is delivered in partnership with Victim Support NI with a focus on providing legal advice and support. Three legal advisers were recruited to the scheme who are all qualified solicitors with experience in criminal law and human rights.^[152] Service provision is designed to focus on privacy rights with respect to the disclosure of medical records and previous sexual history. In 2022-23 there were 936 referrals to the scheme.^[153]

At the time of writing, a Child Sexual Offences Legal Advisers Scheme (CSOLAs) had just been established, with a team of lawyers recruited to provide advice specifically to children and young people.

The current focus is on unregulated general legal advice,^[154] rather than representation in pre-trial proceedings. This means that lawyers providing the service as it currently operates do not need to be practising as lawyers nor do they require rights of audience in court. There have, however, been some instances where a judge has exercised discretion to allow written representations from a SOLA with respect to sensitive records, although this appears to happen rarely in practice.

The pilot scheme does not fall within the scope of legal aid provision as this would have required time consuming changes to legislation. It is funded by way of an agreed annual grant from the Department of Justice.^[155] Gillen had recommended that legal aid be provided for SLR and that it would ideally not be means tested.^[156]

ILA is currently available free of charge to individuals (adults) who have (i) reported a serious sexual offence to the PSNI and (ii) the offence is under investigation. The scope of provision includes complaints of historical sexual abuse. A referral is either made by the PSNI, another third-party organisation or an individual can self-refer using an online form on the Victim Support NI website.

Self-referrals require the following information:

• Name, Address, DOB, preferred pronoun;
• Ethnicity & any relevant disability information;
• Preferred method and time of contact;
• Date of incident, date of report to the police; and
• Name of police officer assigned to the case.^[157]

Referrals from third-party organisations require:

• Contact information (of referral organisation) and relationship to client;
• Brief overview of the case and whether any time sensitive issues; and
• Details of existing support.^[158]

At the time of writing, a public consultation is underway^[159] to scope the implementation of ILR in relation to the disclosure of sexual history and private medical or counselling records at preliminary or Ground Rule Hearings, as envisaged by the Gillen Review’s recommendation.^[160] This is also consistent with the Domestic and Sexual Abuse Strategy 2023-2030, which aims to further provide victims of sexual abuse with information and services to support them through the criminal justice process.^[161]

With regards to the more general legal advice scheme provided by SOLAs, Victim Support NI report high levels of engagement with the scheme. Of those clients referred, 86% are said to benefit from the legal support offered. Of those clients who took part in their survey, 100% said that advice “allowed them to have a voice in the criminal justice process” and 75% reported improved confidence in the criminal justice system.^[162]

The parameters of the current system in NI, however, appear somewhat unclear in view of ad hoc developments on the ground depending on the needs which arise on a case-by-case basis. Gillen had proposed that, after a period of piloting and analysing the provision of pre-trial ILR, an extension of provision during the trial process might be considered; albeit that it was assumed that existing safeguards on sexual history would make the need for such provision unlikely.^[163] Commentators note that the Gillen approach fails to appreciate the way in which protections relating to sexual history and character evidence are commonly evaded during the trial process itself; and that additional mechanisms to access ongoing representation may be required (for example to act as a check on late sexual history applications).^[164] Likewise, limiting representation to sexual history and medical evidence may arguably create unfairness given the need for representation in relation to digital communications and other sensitive third-party materials.^[165] This view was supported by Dame Vera Baird KC in her consultation response to the Gillen Review, where she noted that complainants are “routinely being asked to sign consent for any and all of their personal records”.^[166]

It seems that the current system of ILA does not yet offer the level of support envisaged by Gillen, for example, in protecting complainants from intrusive questioning or where defence counsel may seek to lift the ‘rape shield’.^[167] The limits of the lawyer’s role – both in and outside court – remain somewhat unclear and commentators have further criticised the lack of attention given to the need for changes to the law of evidence or the trial process to facilitate reform.^[168] This confusion goes some way to explaining the need for the ongoing consultation on the implementation of further provision for ILR under the new Victims and Witnesses of Crime Bill. Notably, while Gillen’s SLR proposals were generally widely supported, substantive objections were made by the Northern Irish Bar and there may be continuing concerns about the legal profession’s accommodation of further reforms.^[169]

Finally, the Gillen Review observed the importance of gathering data to better understand the experiences of marginalised groups in relation to sexual offences in NI.^[170] In the context of separate legal representation, the heightened need for representation for certain groups, for example, those with difficulty understanding legal documents, terms and processes was noted.^[171] Relatedly, scholars have also pointed to the discrete socio-political context and the gendered impact of violence and conflict in NI, which may have a bearing upon advice seeking behaviours and should be taken into account in evaluating service provision.^[172]

3.7 Queensland

3.7.1 Background and legal framework

In Queensland, ILA and ILR has been available since 2018 in relation to the disclosure of counselling records. In Queensland, applications to access a complainant’s counselling records are governed by the Evidence Act 1977. A protected communication cannot be admitted in evidence without the leave of the court. A party that wishes to adduce counselling records evidence must provide written notice that they wish to do so,^[173] and this must include “a description of the nature and particulars of the protected counselling communication”.^[174] If the complainant is not a party to the proceedings, the prosecutor must give them a copy of this notice.^[175] In introducing the notice requirement provision, the Queensland Government stated that “[i]ntegral to victims and counsellors asserting their rights in relation to the privilege is being aware that an application has been made to the court”.^[176]

If it appears to the court that the complainant may have grounds for objecting to the application, the court must “satisfy itself the person is aware of the relevant provisions of [the legislation] and has had an opportunity to seek legal advice”.^[177] The court cannot decide the application until at least 14 days after notice has been given,^[178] although this rule can be waived by the court in various circumstances, including where the complainant consents to the release of the records,^[179] or where there are exceptional circumstances and it would be in the public interest.^[180] It is not uncommon for the notice requirement to be waived. One of our interviewees spoke of a case where they were in court on a Wednesday and were handed an ILR case where the trial was due to start on the following Monday. The court waived the notice period with a view to avoiding the adjournment of the trial. The lawyer reluctantly accepted the case because “you obviously don’t want a trial to fall over”. If they do not consent to release, the complainant has the right to legal representation in court to prevent or limit the disclosure of their records.

There is no equivalent provision in relation to the admissibility of sexual history evidence, which is governed by the Criminal Law (Sexual Offences) Act 1978. Such evidence can only be adduced following an application for leave to do so, made outwith the present of the jury. There is no requirement to inform the complainant about any such application and, in fact, an application made at trial can be heard in the absence of the complainant if the accused so requests.^[181]

ILR is available in Queensland in relation to applications to access the complainant’s counselling records via the Counselling Records Protect service.^[182] The sexual assault counselling records privilege was introduced in December 2017, on the recommendation of a special taskforce set up to improve responses to domestic and family violence.^[183] It was not originally part of the taskforce remit, but the issue was referred to the taskforce by the Attorney General.^[184]

The policy papers leading up to the introduction of the sexual assault counselling records privilege do not discuss ILR at all, but Counselling Records Protect was established alongside the legislation.^[185] Following a procurement process, the Queensland Government allocated $1.588 million over 2017–20 to Legal Aid Queensland to run Counselling Notes Protect.^[186]

3.7.2 The ILR Scheme

The Counselling Notes Protect service provides legal advice and court representation to sexual assault complainants where an application has been made to admit their counselling records; and educates and trains the community (including counsellors) and the legal profession about the sexual assault counselling records privilege.^[187] It is provided on a salaried lawyer basis by two organisations in partnership: Legal Aid Queensland (LAQ) and the Queensland Women’s Legal Service (WLS), who work together under a Memorandum of Understanding.

In Queensland there is a distinction between solicitors and barristers, with each having a separate regulatory body. Solicitors and barristers both have rights of audience in all courts, but in the higher courts it is normally barristers who appear.^[188] As such, when dealing with applications to admit sensitive records, both LAQ and the WLS normally engage counsel to appear in the actual hearing and help to prepare the case: “[t]he funding is ensuring that our clients are supported by both experienced solicitors and counsel and it gives them, you know, further support and experience behind them that they’re entitled to with the funding in this area”. Another interviewee spoke of the expectation that although a solicitor could, in theory, appear: “it wouldn’t be something that you would get a solicitor to do with this type of work because the court expects a barrister in criminal matters”.

Where LAQ or WLS cannot assist, either due to a conflict of interest^[189] or capacity issues, Legal Aid Queensland can make grants of aid for representation by private practitioners, who must be members of a statewide specialised panel of lawyers. In practice, the vast majority of cases are taken by LAQ or the WLS, with very little use of private practitioners having been made: “95 per cent is done by our two teams”. The service is not means tested.

Where ILR is provided by a private practitioner, there are figures for the fees payable in the online Legal Aid Queensland Grants Handbook.^[190] There is a fixed fee for “advice” (“Aid has been approved for your solicitor to obtain your instructions, read relevant material, provide advice and prepare your matter in relation to protected counselling notes.”) There is a fixed fee for preparation for a hearing and a “per half day” fee for court time.

As well as representing complainants, LAQ also provides representation for defendants in criminal cases – indeed the vast majority of its criminal work is of this nature. The WLS is a not-for-profit organisation supported through a mixture of State and Federal funding. Aside from its work on the Counselling Notes protect project, it provides free legal assistance and other support services such as counselling to women in the areas of domestic and family violence, family law.^[191] When the CNP service first started operating, LAQ and the WLS each employed one full-time lawyer to work on it. The funding was subsequently increased to support two FTE lawyers in each organisation as demand for the service became greater. In the WLS, the two FTE funding is split over four individuals: two solicitors, a team leader and a practice manager, all of whom do some of the work. Each individual also does work other than CNP work (although one of the solicitors does predominantly CNP work). There are also support staff in each organisation who assist with the administration of the service.

There is an agreement in place between the Counselling Notes Protect (CNP) service and the Office of the Director of Public Prosecutions (DPP), whereby the DPP will refer complainants to the CNP when an application is made to access their sensitive records by the defence. The vast majority of referrals come via this route: “if you’re going to put a percentage on it, it would probably be [over] 90 per cent [that] come through the DPP”. It is also possible for complainants to contact the CNP service directly if they call the Women’s Legal Service Helpline and other third sector organisations can also refer complainants to the CNP in this way.^[192] Occasionally these are women who are existing clients of the WLS. A small number of referrals come from the police service or directly from the courts, if the issue arises during a case hearing and the court realises that the complainant has not been given the opportunity to seek legal representation.

Before referring a complainant to the Counselling Notes Protect service, the DPP secures the consent of the complainant to do so. The DPP completes a referral form, which confirms that consent to contact has been given, and which contains the information that CNP requires and the complainant’s contact details.

It is stated that the service was evaluated in 2020,^[193] but the evaluation has not been made public and the researchers, despite their best efforts, have not been able to obtain access to it. That said, there are no plans for the service to be withdrawn or scaled back. The Queensland Government has an action plan to address sexual violence, and this includes “[p]roviding continuing and increased funding for the Sexual Assault Counselling Privilege legal assistance service (known as the Counselling Notes Protect program) currently delivered through Legal Aid Queensland and Women’s Legal Service Queensland”.^[194]

There are some figures on uptake in the annual reports of the Women’s Legal Service Queensland. In 2019-20, the CNP Unit provided 147 services and represented 37 women.^[195] The report notes that “the Counselling Notes Protect Unit has experienced a gradual and expected increase in demand as the legal profession has become more aware of the legislation”.^[196] In 2020-21, the service provided 150 legal advice tasks, opened 70 case files and represented 67 women.^[197] It is stated that the CNP service:^[198]

… has experienced a 22.7% increase in demand this financial year as the legal profession has become more aware of the legislation, women are more aware of the service and matters where the protection operates are listed in the District Court. The addition of a further lawyer has been pivotal in meeting demand, with the Counselling Notes Protect service always working at capacity.

Subsequent annual reports do not provide any figures and simply state that the service has been “extremely busy”^[199] and that there has been a “further increase” in the number of people accessing the service.^[200]

3.8 Victoria

3.8.1 Background and legal framework

In Victoria, ILA and ILR is available in relation to the disclosure of confidential communications and protected health records. The confidential communications privilege has existed since 1998,^[201] but a process whereby the complainant (or their legal representative) could make submissions about the protected material was only introduced in 2023.^[202] ILR for this purpose was introduced in March 2024.

Applications to access a complainant’s confidential communications and protected health information are governed by the Evidence (Miscellaneous Provisions) Act 1958.^[203] The protected information cannot be adduced in evidence without the leave of the court.^[204] Where a party wishes to adduce such evidence, it must make an application to do so. Where such an application is made, the prosecutor must give written notice to the complainant,^[205] “within a reasonable time of the prosecuting party either giving or receiving … notice of the application for leave”.^[206] The notice must include a statement that the complainant “may wish to consider whether to obtain legal advice in relation to the application” and that “information about the availability of legal advice in relation to the application”.^[207]

The court cannot decide the application until at least 14 days after notice has been given,^[208] although this rule can be waived by the court if it is “in the interests of justice” to do so.^[209] The court must not grant leave unless it is satisfied that the complainant “is aware of the application for leave” and “has had a reasonable opportunity to consider obtaining legal advice about the application”.^[210] The complainant is entitled to be legally represented at the hearing and make submissions relating to the grant of leave.

There is no equivalent provision in relation to the admissibility of sexual history evidence, which is governed by the Criminal Procedure Act 2009. Such evidence can only be adduced following an application for leave to do so made in the absence of a jury, but there is no requirement to inform the complainant about any such application and, in fact, an application made at trial can be heard in the absence of the complainant if the accused so requests.^[211] The Victorian Law Reform Commission recommended in 2021 that complainant notice provisions similar to those that exist in relation to confidential communications be introduced in relation to sexual history evidence,^[212] and that ILR should be introduced to support complainants in objecting to sexual history evidence applications,^[213] but these recommendations have not been implemented.

ILR for sensitive records applications in Victoria is being funded as part of the Australian Federal Government’s pilot programme,^[214] and the service commenced on 1 March 2024.^[215] The pilot is supported by three years of funding of approximately $800,000 (equivalent to around £408,000) per year.

3.8.2 The ILR scheme

ILR in Victoria is provided under the auspices of the Victims Legal Service, which is a partnership between Victoria Legal Aid and ten other legal services providers. The Victims Legal Service already existed prior to the introduction of ILR in 2024,^[216] but its remit was limited to assisting with applications for victim compensation and other types of financial assistance.^[217] It was seen as a convenient place for the ILR service to be situated as the infrastructure was already there. As a policymaker involved in the establishment of the service stated:

A lot of the design work was really just leveraging off what already existed for existing Victims Legal Service and the … referral protocols, the operating guidelines that existed for that. And the design work then focused on what was needed for this particular expansion into service delivery, particularly around training those lawyers and establishing strong referral partnerships with our prosecuting authorities here.

The Victims Legal Service is essentially an umbrella service that takes in initial referrals for ILR. It then passes the case on to one of two organisations who have been funded to deliver ILR: Victoria Legal Aid (VLA) itself and the Victoria Women’s Legal Service (WLS), who both employ salaried lawyers to provide ILR. Victoria Legal Aid also represents defendants in criminal cases. The WLS is a not-for-profit organisation supported through a mixture of State and Federal funding. Aside from delivering ILR, the WLS provides legal services to women in a number of other areas, focusing specifically on victim-survivors of family breakdown and family violence.^[218]

The pilot provided funding for three FTE lawyers. One of these is not involved in ILR but delivers a different aspect of the pilot service.^[219] The remaining two FTE funding was then split between VLA and the WLS. At VLA it has been used to employ one lawyer, who deals with all of the ILR cases. At the WLS, the funding has been spread across two FTE posts, with both individuals concerned doing a mixture of ILR and other work. One reason for this is in order to provide cover for staff absence:

If we only provide one lawyer, there’d be very much isolation in terms of their practice area. If they would go on and leave, which people are entitled to do, who covers it? You know, so it creates all those sorts of sustainability issues.

Where VLA or the WLS cannot assist, either due to a conflict of interest^[220] or capacity issues, VLA can make grants of aid for representation by private practitioners.^[221] The service is not means tested.

Since 2015 Victoria has, like New South Wales, operated a fused legal profession – there is a single admission process to be licensed as a “legal practitioner”.^[222] In practice, some lawyers register as barristers (or were barristers prior to 2015) and there is a Bar Association. All legal practitioners have rights of audience in all courts. VLA and the WLS differ in the extent to which they engage counsel to appear in sensitive records cases. At the WLS, the solicitor tends to appear in court, unless they are too over-stretched to do so. At VLA, it is more likely that a barrister will be engaged for the court appearance. The reason given for this was the additional expertise that counsel can provide:

The grant of aid is great because we can brief barristers to appear and help us prepare the case as well, which I’ve found useful I think because this is such a new area. And, I mean, I’ve got a criminal law background but within our team, there aren’t really other lawyers with a criminal background too. So, I’ve just found it helpful to have that extra person usually with a criminal background who can, you know, point out things that I might have missed.

If a private practitioner is engaged, they must be a member of what is called the section 29A practitioner panel, which comprises private law firms and community legal centres selected by VLA that are willing to act for people who require a grant of legal assistance in various matters, including indictable crime. They are subject to various professional standards.^[223] To date, there has not yet been a case where a private practitioner (other than a barrister) has needed to be engaged, but the service is still in its infancy.

Funding for the scheme is provided by the Australian Federal Government through the Department of Justice and Community Safety.^[224] There are figures for the fees payable for legal services available via the online Legal Practitioner Guideline.^[225] They are fixed fees, rather than per hour payments.

The Legal Practitioner Guidance states that:

As this is a pilot program it is unclear what the demand on the service will be and whether the service will be able to meet the demands of all applicants who meet the criteria under the guideline (including satisfying the State Reasonableness Test). Victoria Legal Aid will prioritise the allocation of funding under this guideline in accordance with a prioritisation framework, which can be provided on request, if/when the demand for services exceeds the level of funding available, i.e., where there are multiple applications that meet the guideline but insufficient resources to allocate all of those matters to a lawyer.

As noted above, the Office of Public Prosecutions (OPP) has a statutory duty to notify the complainants when an application is made by the defence to access their sensitive records. At the same time as notifying the complainant, the OPP asks if they wish to have their details passed on to the VLS so that they can be represented in relation to that application. If the complainant consents, the OPP refers them to the WLS. This happens in two stages. First the OPP passes on some very basic details about the case to the VLS, so that the VLS can do an initial conflict check to see if VLA is representing the defendant. If they are not, then the case will be passed to the VLA lawyers. If there is a conflict, or if VLA is too busy to take the case, it will be passed to the VLS (assuming the complainant is a woman). At this stage, the OPP sends more detailed information about the nature of the proceedings, including the complainant’s contact details and any details of vulnerabilities, such as disabilities or the need for an interpreter: “it’s a two-page referral form, it’s quite comprehensive”. At both the first and second stage, the OPP provides information using a template agreed between the parties: “everyone knows what information to put in there and it’s the same every time, so it just makes it easier, it, kind of, I guess standardises the process”. The VLA/WLS lawyer who is taking the case will then contact the complainant using the preferred means of contact they gave to the OPP.

It is possible for referrals to come from sources other than the DPP – the pilot was designed on the basis of a “no wrong door approach”. The VLS can be contacted by complainants themselves or complainants can be referred via an agency who is supporting the complainant. This can be done by phone or text (there is an online Legal Help Chat link on the VLS website). In the first few months of operation of the service, however, all of the referrals have been via the DPP route.

In terms of the demand for the service since the start of the pilot, interviewees agreed that it had been fairly low: “it’s about four or five a month… I think we’re up to 24”. This figure was compared to figures for the broader Victims Legal Service: “the Victims Legal Service has been operating for 18 months and we’ve had over 3,000 enquiries”.^[226] That said, the service is still in its infancy and interviewees agreed that numbers have increased recently. Cases tend to be time consuming: “what we’re seeing so far is that the numbers are modest but the intensity of service is significant”.

There has not yet been any formal evaluation of the service. There are regular meetings between the Victorian State Government, the organisations delivering the ILR service and the OPP and these have resulted in some tweaks to the operation of the service, for example in terms of the information included in the OPP’s referral form. Two formal evaluations are planned in the future. One will be undertaken at Federal level and will evaluate all three pilot sites. The other will be undertaken at State level and will involve academic input. It will be designed in the second year of the pilot and undertaken in the third and final year.

3.9 Summary

In this chapter, we have described in detail the ILR systems that form the basis of this research. Table 3.1 summarises the main features of each.

In the following chapters, we go on to examine some of the key issues relating to ILR provision in more detail, drawing primarily on data from the semi-structured interviews. Chapter 4 examines referral pathways; chapter 5 addresses ILR in court hearings; chapter 6 is concerned with relationships between key stakeholders; chapter 7 considers trauma-informed practice; chapter 8 addresses models of delivery and funding; and chapter 9 discusses evaluation. Chapter 10 presents the research’s key findings and conclusions.

Jurisdiction: Canada

• ILR/ILA^[227]: ILR
• Operational status at time of writing^[228]: Operational
• ILR provided for: SR and SHE
• Model of ILR: Private practice (but administered by Legal Aid)

Jurisdiction: England and Wales

• ILR/ILA^[227]: ILA
• Operational status at time of writing^[228]: Two pilot schemes – one concluded, one operational
• ILR provided for: N/A
• Model of ILR: N/A

Jurisdiction: Ireland

• ILR/ILA^[227]: ILR
• Operational status at time of writing^[228]: Operational
• ILR provided for: SR and SHE
• Model of ILR: Salaried lawyers located in Civil Legal Aid Office (but counsel always instructed for hearings)

Jurisdiction: New South Wales

• ILR/ILA^[227]: ILR
• Operational status at time of writing^[228]: Operational
• ILR provided for: SR only
• Model of ILR: Salaried lawyers located in Legal Aid (counsel sometimes instructed for hearings)

Jurisdiction: Northern Ireland

• ILR/ILA^[227]: ILA and ad hoc ILR
• Operational status at time of writing^[228]: Operational
• ILR provided for: Ad hoc ILR (written submissions only) for SR.
• Model of ILR: Salaried lawyers located in victim support organisation.

Jurisdiction: Queensland

• ILR/ILA^[227]: ILR
• Operational status at time of writing^[228]: Operational
• ILR provided for: SR only
• Model of ILR: Salaried lawyers located in Legal Aid/victim support organisation (counsel sometimes instructed for hearings)

Jurisdiction: Victoria

• ILR/ILA^[227]:ILR
• Operational status at time of writing^[228]: Operational on a pilot basis
• ILR provided for: SR only
• Model of ILR: Salaried lawyers located in Legal Aid/victim support organisation (counsel sometimes instructed for hearings)

SR = sensitive records; SHE = sexual history evidence