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

Chapter 4: Referral Pathways

Key points

• 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 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.

4.1 Introduction

This chapter discusses the issue of referral pathways – the manner in which a complainer becomes aware of their right to ILR and of the relevant ILR provider(s). It starts by setting out the referral mechanisms used in the international comparable jurisdictions, both for ILR and ILA, as both have important learning points for the proposed Scottish system of ILR. It then considers how referral might best operate in Scotland, given the relevant professional practice rules.

4.2 Referral pathways

4.2.1 The ‘triggering event’

The right to ILR is normally triggered by the defence making a specific form of application or indicating an intention to make a specific form of application, for example to obtain certain material relating to the complainer or to lead sexual history evidence in court. We call this step for the purposes of the report the ‘triggering event’. In all of the jurisdictions we examined, where a triggering event takes place, there is a statutory duty on the defence to notify the prosecution of such an application, which in turn sets in motion the process of establishing that the complainer would be eligible for ILR and offering legal representation to them.

What is important to realise at the outset is that 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. All of the international jurisdictions in our sample that provide ILR employed a form of direct prosecutor referral, whereby the prosecution passes on the complainer’s details to an ILR provider, who in turn contacts the complainer. This would almost certainly not be possible in the Scottish context. The Law Society of Scotland’s rules on professional conduct, whilst allowing the advertising and promotion of a service, expressly forbid one solicitor from approaching another solicitor’s client with a view to soliciting business. The relevant rule states that:^[229]

You shall not make a direct or indirect approach whether verbal or written to any person whom you know or ought reasonably to know to be the client of another regulated person with the intention to solicit business from that person.

In our view, as we outline below, the operation of this provision, and the related guidance, means that a system whereby an ILR lawyer is assigned to a complainer, with that ILR provider then contacting the complainer seeking instructions, would be professionally problematic.

That said, it is still worth briefly setting out how direct prosecutor referral operates and the advantages it brings, because there are important learning points for Scotland, especially in terms of possible pitfalls that need to be avoided in the system that Scotland does adopt.

4.2.2 Referral mechanisms in the comparator ILR services

As noted above, in all of the comparator jurisdictions that operate ILR, a form of direct prosecutor referral is used. While the basic outline of this is the same, there are some differences in detail. In all three Australian jurisdictions, when the triggering event occurs, the prosecutor notifies the complainer of the application and asks for the complainer’s consent for their details to be passed on to the organisation providing the ILR service (which in the Australian jurisdictions is a provider employing salaried lawyers). Assuming the complainer does give consent, the ILR provider then contacts the complainer using the details given to them by the prosecutor.

In the two Canadian jurisdictions that we examined (British Columbia and Nova Scotia), the process is similar, but there are two differences. The first is that the complainer’s details are passed on to a lawyer in private practice, rather than to a provider that employs salaried lawyers. The second is that there is no requirement for the complaint’s consent before referral is made, although the prosecution will sometimes speak to the complainer before doing so.

In Ireland, the process is similar again. Following the triggering event, the prosecutor contacts the Irish Civil Legal Aid Board, who engage counsel to represent the complainant. The consent of the complaint is not required for their details to be passed on to the Legal Aid Board or to counsel.

In all of these jurisdictions, it would be possible for the complainer either to refuse legal representation entirely, engage and pay for a lawyer of their own choosing, or request a different (state funded) lawyer to the one assigned to them. The last of these, while theoretically possible, rarely occurs in practice. As one interviewee stated: “we would probably honour [the complainant choosing their own lawyer] unless there was, you know, an issue. But for the most part, I don’t think we’ve really encountered that before.”^[230]

Interviewees noted two advantages of referral to ILR being done directly by the prosecution. First, prosecution referral was considered likely to lead to a higher uptake of the service: “when we were setting up [ILR] we decided that a warm referral pathway was better than, you know, for example, just providing some numbers for the victim to call”.^[231] Secondly, provided consent to share information was obtained, this could reduce the risk of re-traumatisation: it “minimises the need for a victim to, you know, repeat their story”.^[232]

Other interviewees noted practical difficulties that can arise with direct prosecutor referral. Issues can arise, for example, of ensuring that the complainer was kept appropriately informed:

Some issues have come up just in terms of making sure the complainant’s actually aware a lawyer’s been assigned because sometimes that was, kind of, a bit of an issue before. We’ve tried to express it’s important that they know that they’re going to be getting a call from a lawyer because sometimes that can come as a bit of a surprise.^[233]

Some ILR providers address this by requiring confirmation that the complainer was aware of the referral before they would make contact: “we’ll just flatly refuse to talk to someone if the prosecutor hasn’t already talked to them or the police haven’t already have told them that we’re going to call ... We’re just not going to cold-call someone.”^[234]

Another interviewee noted that in “the vast majority” of ILR cases in their jurisdiction, when notified of cases in which a right to ILR arose:

We do not get any details, contact details for the complainant. We get their name and that is it … In practical terms, you actually wouldn’t want to meet with the complainant too early, [you would] have the separate … representation ready to go.^[235]

In the jurisdiction in question, however (Ireland), because of the timing of the triggering event, the lack of details provided is less problematic than it might at first seem due to the fact that consultation and representation occurs primarily at court, and the system of ILR has been structured around that reality.

4.2.3 Referral mechanisms in the comparator ILA services

Whilst the focus of this report relates predominantly to models of ILR provision, there is insight to be gained by consideration of how referral pathways operate in systems of ILA provision. The most relevant jurisdiction is Northern Ireland. Here, where an application is made by the defence to obtain the complainant’s private records, the prosecution must take steps to notify the complainant of the application and advise them of their entitlement to make representations at the hearing. At this stage, they also provide the complainant with details of the Sexual Offences Legal Advisers Scheme (SOLA) service, but it is left to the complainant to contact the service. While the SOLAs are there to provide ILA, rather than ILR, the referral mechanism is one that could potentially operate in Scotland.

ILA providers also promote their service to complainers more widely than ILR providers do. Signposting complainers to ILA cannot be entirely contingent on the prosecution providing details of the service, as ILA may be relevant in a much broader range of circumstances, including where no report has been made to the authorities. The effective provision of ILA therefore requires a broader strategy of public awareness, with for example a Northern Irish interviewee noting that they had worked on “build[ing] more awareness … on the back of bus posters and things, just to pick up a bit more”.^[236]

A Canadian interviewee noted the wide range of ways in which complainers could become aware of ILA provision:

We did some promotion when we launched last year in the fall, and we had some media coverage. And we also promote to social media and through the networks that we have through our other programmes that we have. In any case, a lot are through victim support organisations or counselling organisations. And then there are a couple of key organisations here [who] have a number of programmes to provide free legal advice. So, they’re pretty well-known so they often get calls and refer people to us. So, it’s … quite a mix. Sometimes private bar members [i.e. lawyers] also refer.^[237]

The provision of ILA across different Canadian provinces also illustrated differences in approach, with one interviewee noting how in two neighbouring provinces a complainant could contact a general government support line, which would provide a list of lawyers (with biographical details of the lawyers) from whom a complainant would choose who they would contact for ILA, while in the other the complainant could contact a legal support navigator who would be able to discuss with them what their needs were and establish which lawyer might be a good match.^[238] Another factor worth bearing in mind in terms of the distinction between referral pathways for ILA and ILR is that the former need not necessarily be provided by a practising solicitor. This means that professional guidance related to rules prohibiting approaching others’ clients do not come into play.

4.2.4 Avoiding delay

Irrespective of the exact nature of the referral process, one issue that was mentioned by almost all interviewees was the difficulties that arise from late referral. Short turnaround times were repeatedly emphasised as a particular problem, for example:

… often when we’re receiving these referrals, we’re talking about a turnaround time of four days to draft an affidavit and to obviously introduce yourself to a woman who’s a complainant of a sexual assault matter, which comes with … you know, they don’t just turn up with this one discreet issue that nothing bad has ever happened and this hasn’t affected their life and whatnot. So, you have to meet the women where they’re at, at that point, which can be very distressing. And so, one of the issues is the delay in the referrals getting through to us. And so, the turnaround times have been very tight. And … that’s also obviously difficult on lawyers who are having to digest really distressing information in a short period of time and, kind of, as well as dealing with that, also trying to draft documents and get them ready for court and whatnot.^[239]

I think the initial agreement was that we would definitely be getting the referral immediately, so we assumed that we would have at least the full [notice period before the hearing]. But the reality has been we’re often getting, you know, less than [this], sometimes less than a week. So that’s, yeah, definitely something that’s added difficulty into the process.^[240]

Another research participant observed in relation to a specific case that “[the complainer’s] lawyer … I think he got notified at 8am one morning that he was due in court at 9. And he didn’t even know [the complainer’s] name at that stage.”^[241]

ILR cases can be complex and the complainers can be vulnerable. As such, late referral can make it very challenging for the ILR provider to establish a relationship with their client and provide effective representation.^[242] As one interviewee put it:

It might take the [prosecutor] a week to get in contact with the client, you know, they might just not be answering their phone or whatever it is. So then by the time it gets to us, we don’t really have a lot of time to prepare, and it does take a bit of time to, kind of, build a rapport with the client and prepare properly.^[243]

This can lead to ILR providers having the difficult decision to make about whether to seek an adjournment in order to secure more time to prepare their case. The downside of doing so, of course, is that this can delay the trial, which can be stressful for the complainer in an already stressful situation.^[244] If the court is not receptive to adjournment requests, however, this causes its own difficulties, as one of our interviewees noted:

So, I haven’t seen that the substantive matter has had to be adjourned because of this. I mean, I’ve had one recently where it’s been cutting it a bit fine, but the court is reluctant to adjourn a trial date where something’s been put down for a trial and a judge has been allocated because of something like this.^[245]

This, they stated, put a significant degree of pressure on the ILR provider to work excessive hours to avoid adjournments and increased the risk of burnout.

In the jurisdictions that were examined, it was common for there to be legislative requirements in terms of ensuring that a certain period of time must elapse between application submission/notification and the hearing. In New South Wales, for example, the court cannot decide an application for leave until at least 14 days after notice of the application has been given to the complainant and the court must satisfy itself that the complainant has been given a “reasonable opportunity” to seek legal advice.^[246] In Queensland, the prosecution must give notice to the complainant of a relevant application “as soon as practicable” and the court cannot decide the application until at least 14 days after notice has been given.^[247] There are also legislative provisions requiring the complainant to, for example, be informed of their right to be legally represented and provided with information about the availability of legal advice.^[248] In none of the jurisdictions examined, however, were there any legislative requirements relating to the timing of provision of information to complainers about the service (or for direct referrals to be made where that was possible in the jurisdiction).

4.3 The Scottish context

4.3.1 The role of the Crown

In terms of the Scottish provisions, the Bill in line with all of the other adversarial jurisdictions we considered, envisages that COPFS will assume responsibility for notifying the complainer that a section 275 application has been made, providing them with an explanation of what is proposed in terms of the application, and giving them information about their rights (including the right to make representations) in relation to this.^[249]

As we have indicated, the present rules of professional practice in Scotland dictate that direct prosecutor referral, whilst clearly more straightforward, would be professionally problematic for the solicitors providing ILR and the Bill clearly recognises this in terms of its drafting. 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 such individuals then took the next step of instructing a solicitor at that service directly.^[250] This would essentially be very similar to the model used in Northern Ireland to notify complainants about their right to seek legal advice from the SOLA service in relation to applications to access their private records, albeit that SOLA is an ILA service, not an ILR service. In terms of ensuring good uptake of the service, a system like this, where information about the specific legal provider or providers who operate ILR is given to the complainer by the prosecution, is preferable to a system where the complainer is notified about their right to ILR, but is left to find their own legal representative.

It is clear, then, that COPFS will have a pivotal role to play in the referral pathway process, given their proposed role in making complainers aware of their rights in this area following the ‘triggering event’. Whilst undeniably significant progress has been made by COPFS in terms of how they communicate with complainers, research conducted in Scotland has also highlighted issues in terms of effective and trauma-informed processes of communication,^[251] and this should be acknowledged and borne in mind by policy makers. This factor, as we outline in further detail in chapter 9, underlines the importance of ensuring effective Government evaluation of the service proposed for ILR at section 275 hearings.

In view of the importance of the Crown’s role in terms of the effective operation of the referral pathway for the service, we explored with Scottish stakeholders their perspective on this issue, and they agreed with the proposed approach in the Bill. As one participant noted, communication by the Crown about eligibility for ILR at section 275 hearings made sense given that:

… from the victim’s point of view, again, it makes it simpler ... something from the Crown, rather than something different from another organisation. I mean, it would be, I imagine, such a daunting experience for somebody anyway, without then getting ... communication from multiple different people, you know, it could be quite overwhelming.^[252]

We also asked COPFS directly for their perspective on their ability to perform this task efficiently:

Our practices and processes are geared to contacting complainers when [section] 275 applications are lodged. I appreciate that there has been previous criticism about how that is currently or previously been undertaken in terms of ensuring it's done in a trauma-informed manner, ensuring that ... it's done in a way that is beneficial to the complainer being able to fully understand the process and how that works ... but we are currently undertaking that obligation.^[253]

This quote alludes to the fact that, in Scotland, the Crown currently has a legal obligation at common law to consult a complainer and take their views on the contents of a section 275 application.^[254] This raises issues relating to the sharing of information between parties that we pick up on in chapter 6.

Our data from other jurisdictions indicates the vital importance of effective intimation of the right to ILR following the ‘triggering event’ in the criminal justice process. Failure to have an efficient referral pathway can lead to matters being dealt with at the last minute in court, as one participant told us:

[it’s] not uncommon for me to appear and be talking to the judge immediately before jury selection about these sorts of issues. And it’s the legal argument immediately prior to trial commencing, it’s actually gotten to the point now where I’ll appear and if the court doesn’t serve notice and I’ll say, you know, there’s a sexual assault communications privilege issue. And there’s just this slightly haunted look in the judge’s eyes.^[255]

In Scotland, the Bill envisages extending the period of intimation for a section 275 application (the triggering event) from 14 to 21 days, with a view to enabling complainers sufficient time to instruct a legal representative. The first thing to note is that whilst this is no doubt a sensible measure, its success is contingent on the Crown and the defence being adequately prepared and drafting applications in good time. It is worth noting that research in Scotland has indicated the pressure that the criminal justice system in Scotland is under generally and, specifically, the pressure that the defence bar has been under in recent times.^[256]

In the Scottish context, as we analyse further in relation to the potential disclosure of information, and in respect of the importance of trauma-informed practice, there is going to be, even with the revised timelines for imitation of section 275 applications to 21 days (the triggering event), little room for delay by the Crown in terms of informing complainers of their right to ILR, if the whole system is to work effectively. Equally, cases involving the scheduling of other evidential processes, such as evidence on commission, will require careful consideration and prompt action by COPFS in order to facilitate intimation of ILR timeously.

As noted above, research has also identified concerns in relation to how COPFS communicate with complainers.^[257] It is understood, however, that systems have been implemented under the stewardship of the current Lord Advocate to communicate more effectively with witnesses. What requires to be borne in mind is that the entitlement to ILR at section 275 hearings extends beyond the High Court cases where many (but not all) of the improvements and systems seem to be focussed. COPFS will need to ensure that they have effective systems in place for dealing with intimation of ILR rights to complainers across both summary and solemn procedure. In this respect it is worth noting briefly the concession made by the Crown in the case of Corrins v BM,^[258] relating to their failure to act properly in a sensitive records case, prosecuted at summary level, following the triggering event:^[259]

In appearing for the appellant, the Lord Advocate candidly accepted that the Crown neither intimated the application to the complainer nor discussed it with her. They did not seek the complainer’s views. Contrary to the advice and instructions given to procurator fiscal deputes, the Crown had not done that which they should have done in this case. The apology was, in our view, properly made and we propose to say no more on this aspect of the hearing of the application before the summary sheriff.

As we note, the Crown has made significant progress in terms of how it communicates with complainers and is confident in its ability to provide information in the context of section 275 hearings through pre-existing channels of communication. The above case, however, does underline the importance of service wide training, awareness and processes.

4.3.2 ILR and docket witnesses and complainers

The final matter that needs to be considered in the context of referral pathways is how the system of ILR at section 275 hearings proposed by the Bill might extend to docket witnesses, and complainers in prosecutions under the Domestic Abuse (Scotland) Act 2018 (hereafter ‘the 2018 Act’), matters we were expressly asked to give consideration to.

As set out in chapter 1, a docket witness is a person who is alleged to have been the victim of wrongdoing specified in a docket attached to an indictment or complaint in a Scottish criminal case.^[260] A docket allows the prosecution in sexual offence cases to give notice of their intention to lead evidence of a crime (or other behaviour) not charged. This may, for example, allow the prosecution to lead evidence of wrongdoing which cannot be the subject of prosecution because it occurred in another jurisdiction, or where prosecution is time-barred, but where the evidence in question can serve as corroboration of an offence with which the accused is charged.

The first thing to note in this context is that such witnesses are not, as a matter of law, entitled to the protections contained in section 274 of the 1995 Act. Whilst Crown practice has changed in recent years, such that they opt to make section 275 applications to cover such witnesses in what they perceive to be appropriate circumstances, there is no legal obligation on the defence to do so.^[261]

As one participant told us:

[Section] 274 does not apply ... in relation to a docket witness … Although [COPFS] do make applications. There is no prohibition on the defence from asking questions outwith the general relevancy prohibition in terms of the evidence itself. So, whilst the Crown do make [section] 275 applications, the defence don't require to, and the defence are perfectly entitled and do ask questions that would otherwise be struck at by [section] 274.^[262]

Another potential issue that arises in this context concerns complainers who are giving evidence in relation to charges under section 1 of the Domestic Abuse (Scotland) Act 2018. It is competent in this context to specify sexual offending, including rape, in a narrative charge constituting the substantive offence of abusive behaviour towards a partner or ex-partner.^[263] However, the prohibition in section 274 does not extend to section1 of the 2018 Act.

This raises a clear problem in terms of structuring the system of ILR around a triggering event (i.e. a section 275 application) that will be consistent for all such witnesses. It also raises issues in terms of the current wording in the Bill, which explicitly refers on multiple occasions to the rights of complainers, in the context of ILR.

We were told that, “in terms of how the Crown approach a docket witness, it is and should be in exactly the same way as we approach a witness on a substantive charge”.^[264] Therefore there is, we were told, in operation the same modes and manner of communication with such witnesses at COPFS. As such, in our opinion should the Government wish to extend ILR provision to docket witnesses and complainers in cases prosecuted under section 1 of the 2018 Act, via a reliable and consistent referral pathway, the terms of section 274 should be amended so as to include individuals giving evidence in respect of a docket. At the time of writing of this report, the Scottish Government has proposed to being forward such an amendment at Stage 3 of the Victims, Witnesses and Justice Reform (Scotland) Bill which will address the potential issues raised by us in this context.

4.4 Chapter summary

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 of the jurisdictions we studied that operate an ILR service assigned initial responsibility to the prosecutor to take action following the triggering event to inform the complainer of their right to ILR. All of 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.

Interviewees saw direct prosecution referral as having two particular advantages: it was considered likely to lead to a higher uptake of the service and with appropriate information sharing could reduce the risk of re-traumatisation. However, direct prosecutor referral would not be possible in Scotland, given the present 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.

As such, we would endorse the proposed approach envisaged in the Bill relating to the role of the Crown in intimating rights of ILR to complainers, whilst suggesting ongoing scrutiny of their performance in this respect once ILR becomes operative. This is a similar referral mechanism to the one that operates in the context of Northern Ireland, where the prosecutor provides details to the complainer of the available legal assistance service (albeit this is ILA rather than ILR).

Delay was consistently identified as a problem in the practical operation of all types of referral mechanism. 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. Failure to do this timeously is likely to lead to further complainer re-traumatisation.

We were asked to consider the position of docket witnesses in relation to section 275 applications and ILR and other categories of witness who may require ILR in this context but who are not protected by section 274. The interview data indicates that there is no 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 1995 Act to ensure such individuals are now protected by this provision.