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

Chapter 6: Relationships with Criminal Justice Stakeholders

Key points

• Facilitating effective communication between criminal justice stakeholders in respect of the design and operation of systems of ILR is a matter of vital importance, which can lead to the early identification of potential problems and improvements in the performance of such systems.
• The involvement of service users, i.e. victim/survivors of sexual violence, in these processes of design and oversight can provide policy makers with valuable insight.
• The proposals in the Bill relating to the disclosure of evidence as currently drafted risk overcomplicating matters, creating delays and creating unnecessary work for the Crown. A simpler system would be for the ILR provider to apply to the court for a ruling on disclosure – in those cases that require it – and intimate that application to the Crown and defence within a specified period of time such as seven days of receipt of the section 275 application or later on cause shown. The Crown and defence should have the opportunity to object to disclosure within a specified time period. If this occurs, the matter will require to be determined by the court at the administrative calling of the case with consideration of the substantive section 275 application continued.
• There is a danger of over-crowding of the space if different agencies are all involved with the complainer, which has the potential to confuse and further traumatise. There is a need to clarify the roles of the different parties involved in interacting with complainers and to ensure that all parties (and complainers) understand this delineation.

6.1 Introduction

This chapter examines the relationship between ILR providers and other key criminal justice stakeholders. Three issues are considered: the importance of good channels of communication between all stakeholders; facilitating effective disclosure of evidence; and the importance of delineating different roles to avoid confusion or overlapping of responsibilities.

6.2 Relationship building and collaboration

6.2.1 The general importance of collaborative working

There are various different stakeholders in the criminal justice system that might interact with an ILR service provider, including the Government (assuming that this is the funder of the service), the prosecution, the defence, the judiciary and other victim-related service providers. Research participants were asked about their interactions and relationships with all of these stakeholders. Interviewees mostly had little to say about their relationships with the judiciary and the defence, other than to note that they were generally good and that judges, in particular, were supportive of ILR, seeing it as beneficial to complainers and the court. Interviewees also commented positively on their relationships with Government, the prosecution and with other victim-related service providers, but stressed that in relation to these key stakeholders in particular, regular communication during both the design and the implementation phase is key to an effective ILR service. This is consistent with existing research, where the importance of communication and collaboration between different stakeholders is a common theme.^[338]

Interviewees noted the benefits – once the service is up and running – of having regular meetings between the ILR providers, the prosecution and the civil service. One commented that:

We have a community of practice that meets bimonthly as well, where we discuss some of these issues but just also broader issues with the [ILR service]. Which I think has been very helpful because it’s that sort of information-sharing and you have … I guess you can identify trends and issues that are cropping up for clients across the board, which I think is really helpful having that.^[339]

Whilst these meetings obviously cannot entail the discussion of client confidential materials, their value was nonetheless emphasised to us by participants. Another participant spoke of the benefits of regular inter-agency meetings for monitoring and evaluation purposes:

We meet quarterly … we make sure that our objectives are being met, that, you know, the feedback from service users is positive, that they’re increasing their confidence in the criminal justice system, that we’re meeting the engagement rate [targets], monitoring the live cases, the hours per case. So, to just meet all these objectives.^[340]

Some interviewees pointed to the particular importance of complainers being involved in the design and monitoring process, such as this policymaker, who spoke in the context of establishing an ILR service:

We had a couple of victim-survivor representatives who were in the meetings they’d set up for service design and were consulted throughout the process. Which I think is an important part of it because they could bring that lived experience to the design of the service.^[341]

As a result of this involvement, changes were made to service design in respect of the referral pathway, an issue that the interviewee thought may have been missed if complainers themselves had not been involved in the design process. Once a model of ILR delivery has been selected, it is evident to us from the data that there is clear and obvious value in policy makers facilitating effective communication between criminal justice stakeholders at both the design and the post implementation stage in Scotland.

As an indication of the potential dangers that can result from the failure to ensure that representatives of all parties communicate and understand the logistical processes relating to ILR, it is apt to note again the position that developed in Scotland following the introduction of ILR for complainers in respect of opposition to sensitive record applications that we referred to earlier in the report.^[342]

In this context, the change in procedure was implemented by judicial decision and not legislation, therefore giving policy makers and criminal justice stakeholders far less capacity to plan. It is still hard to come to any other conclusion, however, that the situation which pertained thereafter was distinctly sub-optimal, and that a lack of communication between relevant parties seems to be a feature of that position. Whilst there is limited empirical data available, one participant noted to us in relation to take up of the service:

The numbers are very small, there’s not a lot of take-up. I get the impression that there’s not a high amount of awareness ... I think more specialist agencies perhaps have their referral routes.^[343]

Furthermore, in the Sheriff Appeal Court judgment of Corrins v BM,^[344] the court was critical of the lack of a clear process of intimation of applications at summary level, and the failure of various parties, including the Crown and the sheriff at first instance, to facilitate a complainer’s right to ILR. The court felt itself compelled give direction to SCTS and the Crown about what it deemed to be the appropriate way to handle matters.

In the context of ILR at section 275 hearings, whilst obviously there is clear legislative assignation of the referral pathway as mentioned in chapter 4, the data we have gathered clearly suggests the value in relevant stakeholders communicating in respect of the design and the ongoing running of the service.

6.2.2 The key relationship between the ILR provider and the prosecution

The interview data makes it clear that the relationship between the prosecution and the ILR provider is the crucial relationship that contributes to the smooth running of an ILR service. One research participant commented, for example, that “the best thing that protects a complainant is victim support and good communication with [the prosecutor]”.^[345] Another stated that “relationship management between people running the [ILR service] and the [prosecution service] is really important”.^[346]

The relationship between the two parties is not entirely straightforward. The introduction of complainer representation into the criminal trial has sometimes been seen as controversial on the basis that the trial is a matter for the State and the accused.^[347] The role of the State is to represent the interest of the public – including the complainer – in securing the conviction of offenders. In terms of ILR for sexual history and private record evidence, however, one of the main justifications is that the complainer has a specific privacy interest in terms of the admission of the evidence that – although it will often coincide – is distinct from the interests of the State.^[348] In Scotland, it will be recalled that in proposing ILR for complainers in sexual offence cases, the Dorrian Review acknowledged the tension that exists between the role of the Crown as public prosecutor and advancing the interests of the complainer.^[349] One interviewee spoke of maintaining a “healthy tension” between victim representatives and the prosecuting authority: “if there wasn’t that slight tension, we wouldn’t be doing our job”.^[350]

Because of this distinct interest, interviewees often stressed the importance of maintaining independence from the prosecution, while at the same time developing a good working relationship with them. One commented that “it’s important to really make sure that we’re not stepping on anyone’s toes while still, you know, providing good advocacy”.^[351] Another noted that:

I think [the prosecution] need to be on board with victims having appropriate standing or else you’re going to just create a triangle of conflict. We’ve had examples where there has been, kind of … conflict’s probably too strong a word but there has been things done on the victim’s behalf that the prosecuting authority didn’t necessarily agree with or found challenging. And that’s part of the story perhaps of providing victims with a participatory right in the process ... But I think starting from the very beginning, getting the prosecuting agencies on board with the why and having a sense that they’d be a supporter rather than a detractor is probably pretty critical.^[352]

This was a point that was also made by a prosecutor:^[353]

Obviously, [ILR providers] are a representative for the victim and, you know, should put forward any points that the victim might have. But where it becomes very confrontational, I don’t think that’s helpful … I think it is a bit of a danger, that kind of role has to be clearly defined.

ILR providers noted that this was sometimes a difficult balance to maintain. One interviewee admitted that “we’ve crossed paths [with the prosecution] many a time, simply because we were pushing the victim perspective from the start”.^[354] Another commented that:

You really do need your prosecuting agency on side and understanding why [we provide the ILR service]. Because the interest of a victim and what they might want won’t necessarily line up with the interests for the state’s prosecution of a charge. And that’s … a fine line to tread around our role.^[355]

A similar comment was made by another research participant, who stated that:

It’s a constant balance and sometimes that balance might hit one direction and maybe go too far, maybe we get a bit too cosy with the [prosecution]. I think just being careful to manage that relationship and make sure that we don’t become overly-cosy with either any of our criminal justice partners because our priority will always be the victim.^[356]

6.3 Disclosure of evidence

With our earlier comments about the value of effective communication between stakeholders in the effective design of systems of ILR in mind, we turn to examine the proposals in Scotland that relate to the disclosure of evidence. This issue highlights the need to think carefully and manage a (complex) series of relationships between the ILR lawyer and various parties. The Bill currently envisages that the Crown will apply to the court for authority to disclose evidence to the ILR relating to the section 275 application. This process envisages that the ILR lawyer, as well as the defence and the Crown, will thereafter be able to make submissions about the potential disclosure of evidence (should they so wish) prior to the court making a ruling on the application.

The provision has clearly been drafted with the understandable rationale of ensuring that there is a clear legal basis for the exchange of information, and is mindful of the fact that there may be complicated issues relating to the exchange of information in any case that might require judicial oversight. That said, the participants we spoke to raised concerns about the Bill as currently drafted. One participant suggested that the process envisaged by the Bill would inevitably cause delay in the scheduling of business, and struggled to understand why it was necessary:

Our principal concern is that a process has been created in the Bill that’s called a disclosure process. And we feel it is convoluted, unintentionally, and will cause churn and delay and will be the complete opposite of the intentions of ILR ... And that is because a disclosure process has been introduced whereby the Crown has to identify documentation, then make an application to the court for a judge to decide whether it should be disclosed to the complainer’s ILR. Then obviously they, understandably, will need time to review that. And then the application itself will have to be heard.^[357]

It was stated that this would lead to a situation whereby consideration of section 275 applications would require to be continued to an additional hearing as the issue regarding disclosure would need to be determined at the preliminary hearing (or first or intermediate diet as the case may be). In this respect the issue we have previously discussed regarding the impact of further delay on vulnerable complainers should be borne in mind.^[358] These concerns relating to the timetabling of business were also echoed by the Senators of the College of Justice in their response to the Scottish Government’s pre-legislative consultation.^[359]

Another participant noted that the proposal seemed paternalistic, in that it placed control in the hands of the Crown, with no potential for the ILR provider to request information. They stated that:

… it tends to then leave it again on the Crown as being almost paternalistically, supervising what you can and can't have, and the ILR has no means of requesting additional information or saying that's not exactly what I want.^[360]

We were also informed that the proposed system would have resource implications for the Crown and result potentially in a system that only provided incomplete information:

For the Crown [the proposed system of disclosure] is potentially problematic on two levels. There is the practical side of the Crown having to effectively review the entirety of a case to identify what we think is relevant to an ILR application and then provide it to the ILR so that we would need to be building some ability for that to be resourced within our service in the time frame that’s available. We would also, however, not have access to any information that the defence or evidence the defence may have at that stage, and if it’s a defence application, they may have defence witnesses or other defence evidence that they believe is relevant to the 275 application for which the Crown would have no access to at that time, because there’s not a duty of disclosure from the defence on so it would potentially be an incomplete ... disclosure from us.^[361]

These concerns were also raised at Stage 1 consideration of the Bill by COPFS.^[362] As we have set out above, it was stressed to us by participants that we spoke to from jurisdictions outside of Scotland that an effective relationship between national prosecutors and those providing ILR was especially important to the efficient running of the service, as were effective relationships between parties generally.

In light of these concerns, we sought to reflect on both the data we had gathered from international participants relating to the disclosure of information, as well as seeking to explore with Scottish criminal justice stakeholders what evidence they thought would actually need to be disclosed with section 275 applications. In respect of international practice, given that the vast majority of the jurisdictions we considered related to ILR in systems of recovery for sensitive records, the issues relating to wider disclosure tended not to arise. This is because in these systems it is the records themselves that are the subject of a ruling on admissibility and the party’s consideration tends to be limited to the evidence that is being sought.

Ireland, which as outlined earlier has a closer comparable system of representation, given that it provides ILR in respect of the admission of sexual history evidence, also provides somewhat limited insight. This is because there is no requirement to make an application which states the basis for the admittance of such evidence in writing and because, as explained in chapter 5, these matters are being determined largely once the trial has begun. It appeared that discussion and exchange of information in relation to these matters largely occurred on a counsel-to-counsel basis through a culture of practice and not on a statutory basis. As one participant told us, referring to the basis for the exchange of information between the ILR and other parties:

I’d say it’s a culture of practice probably. There’s no … legal basis in our criminal justice system. There’s a legal basis for disclosure to the defence. There’s what’s known as a book of evidence that’s served on the accused before the case is sent forward for trial in the trial or indictment scenario. To share with the victim? No, there’s no legal basis for that.^[363]

Another participant remarked that the prosecution would share information with the ILR in so far as that was possible, but again the manner in which the system operated made that difficult:

So, if I knew what the application … the detail of the section 3 application, [if] I knew where it was coming from because it was in the papers, like the case papers, then I would provide the Legal Aid Board with that, so that they have an idea of what they need to advise their client on.^[364]

Despite these issues, as previously mentioned, one participant spoke nonetheless to the effective operation of the scheme, commenting that:

So, for instance, supposing a rape case is starting at 11 o’clock tomorrow morning which I’m involved in, let’s say, as a prosecutor. I will already have been approached by the junior counsel, [asking] was I there for [the case for which ILR is being provided]? I, insofar as I know anything, will have filled them in on any relevant details. They will then appear tomorrow morning just in answer to the court do they appear in such and such a case for the complainant-victim? And then there will be some indication on the basis that everybody at that stage knows what is being sought, the limits of what’s being sought, the reason why and stuff like that. If it’s one that can be comfortably done at that stage, the judge might indicate that he … the judge will rule at such and such a time and hear the parties.^[365]

Whereas the operation of any system of ILR, as noted in chapter 5, is clearly shaped by the national context within which it operates, the situation as it pertains in Ireland clearly should not be replicated in Scotland, as policy makers have correctly identified. The Bill provides an opportunity to design a system that appropriately regulates the relationship between key stakeholders and provides legal certainty. We note, however, that complainers would be entitled to seek to obtain information via commission and diligence procedure regardless of the statutory position. When we asked Scottish participants to consider what information they thought needed to be shared in respect of a section 275 application, none identified any obvious matters that would not in the usual run of things be mentioned in the application itself. As one remarked:

Other documents. I suppose I can’t immediately think of common other types of documents which would be relevant to [section] 275 applications is the truth. Maybe if … let’s imagine it’s forensic reports to do with the presence of biological material here or there. That would have been obvious even without the documents from the tenor of the [section] 275 application ... So, I don’t feel any sense of dread about that. Again, I would trust the solicitors and the counsel and solicitor advocates involved. And I don’t foresee it being anything beyond the [section] 275 application and the statement in the ordinary course of events. And maybe the charges on the indictment. But again, it’s hard to see why the complainer couldn’t see the charges that relate to him or her on the indictment anyway.^[366]

This view was reflected by another Scottish stakeholder:

Often when you read a properly framed [section] 275 application, you may not need any additional disclosure because everything is within the [section] 275 application.^[367]

Finally, another participant noted:

I personally struggle with the extent to which disclosure is needed. Because if we take a step back and if we don’t have ILR, we currently have a process whereby, after RR, Petitioner,^[368] the Crown has to consult with the complainer. What are the Crown disclosing to the complainer to allow them to represent the complainer’s views?^[369]

We canvassed views on a potential solution to the issue of disclosure, in view of practice elsewhere, with participants suggesting that the process should be simplified so that the onus is placed on the ILR provider to request any such information additional to the section 275 that they thought was necessary, in order to act. One participant stated that:

Maybe there’s a process by which those who are to represent the complainer can ask for more material ... You know, so you’ve got an assumption that they will get [the section] 275 application [and] all of the statements of the complainer. And if there is a need for more documentation, they can make perhaps a brief, written application to the court, which can be circulated and either go through without opposition or give rise to a hearing.^[370]

Another participant agreed:

A more structured … way of doing it is to provide the ILR with the provision to apply for the disclosure that they think they require.^[371]

Having considered the matter, it appears to us that the disclosure provisions in the Bill do need reform. The data we collected from elsewhere make clear the importance of an effective relationship between the prosecutor, the provider of ILR and all other parties. Research has shown that the quality of drafting of section 275 applications has improved in recent years.^[372] Whilst obviously there will be individual instances whereby applications are not drafted to a high standard, as indeed will there be occasions when the ILR feels like additional disclosure is required in order to perform their role, these instances should be, we think, relatively uncommon. Therefore, a revised system of disclosure should be considered which reflects this position and does not place unnecessary extra pressure on the Crown or the courts in respect of the scheduling of business.

Whilst the precise terms of the revised disclosure procedure will require thought, it strikes us that a system whereby the provider of ILR is asked to state what it is they require in writing to the court, and to intimate that application to the Crown and defence, is sensible. If there is no objection, the matter should be capable of being disposed of, on the papers, by a single judge who can then issue a relevant interlocuter specifying the disclosure to be made. It would seem to us that the current provisions in the Bill stating the threshold for disclosure should be replicated i.e. judicial discretion to refuse or order disclosure, with any conditions the court deems appropriate “when it is in the interests of justice” to do so. Discussions will need to occur with stakeholders as to what is feasible in this respect, but we tentatively suggest that the independent legal representative acting for the complainer should be required to advance this application within seven days of receipt of the section 275 application or another specified period. Any application later than that should be permitted only on cause shown.

As one participant noted:

I would anticipate [that in] a majority of cases, if not all of the cases, there will be no surprises in terms of what the ILR would wish to have disclosure of to fully examine. So, it could be a paper exercise in a lot of cases, because it is simply what is within the [section] 275 application.^[373]

The Crown and defence should be required to intimate any objections to disclosure within seven days of receipt of the application (or another specified period), or later on cause shown. The court should, absent any opposition, deal with the matter administratively in a similar fashion as to how it deals with vulnerable witness applications. Of course, we acknowledge that, even under a revised system, there may be instances whereby the issue of disclosure, if contested, will lead to delay, because it seems in these instances, the preliminary hearing or other administrative diet will require to be continued post the ruling on disclosure to facilitate consideration of the substantive section 275 application (in light of the complainer’s views). In this regard, as we have mentioned, the number of cases whereby disclosure seems necessary strikes us as small and hearings will only be required where the request is opposed. The requests if uncontentious could be dealt with in much the same way as vulnerable witness applications are. That said, some additional resourcing and logistical costs are unavoidable in the context of seeking to provide ILR. The judiciary and the Crown should be consulted about the proposal for disclosure and ongoing evaluation is required.

The final matter that is relevant in the Scottish context in this respect relates to the regulation of the use of evidence that is disclosed to the ILR lawyer. As was flagged by Scottish stakeholders,^[374] the legislative regime that covers the use of Crown disclosure applies only to the defence. For good reason, the use of such evidence is tightly regulated by law and professional guidance.^[375]

Given that Crown disclosure contains highly sensitive information, we propose that the relevant rules on disclosure are amended, so that they extend to those who act for complainers in this context. As one participant noted:

The requirement to return the disclosure, the confidential nature of the disclosure, all of those I think would have to be mirrored for ILR to ensure that there wasn't a gap in terms of the duties and obligations of a solicitor when receiving disclosure from the Crown.^[376]

6.4 Clarity of roles

A further theme to emerge from the interviews was the need to clarify the roles of the different parties involved in interacting with complainers and to ensure that all parties (and complainers) understood this delineation. Research participants spoke of the danger of over-crowding of the space if different agencies are all involved with the complainer.^[377] This has the potential to confuse and further traumatise complainers, as several of our interviewees noted:^[378]

I just think we need to be maybe careful about introducing a proliferation of different people into the victim’s life. You know, because each person, I guess they have to tell their story, what happened and where they’re at.^[379]

I think a lot of the people that we encounter deal with … mental health issues and more generally have chaotic lives. And they have no idea who’s phoning them sometimes, do you know, and they could speak to us five times and they go, where are you from again? It doesn’t help that there’s … various support organisations in place ... So, people get us confused quite a lot.^[380]

[Complainers] don’t want to go to four different shops to have … their needs met, they want it in one place. And quite rightly ... especially given the subject matter of what we’re dealing with … I mean, it would be, I imagine, such a daunting experience for somebody anyway, without then getting multiple communication from multiple different people, you know, it could be quite overwhelming. And you can see the risk of disjointedness as well, the more people who are involved.^[381]

It was also seen as important to make sure that all the parties involved in interacting with the complainer understood the role of the ILR provider. This was not always the case, especially in those jurisdictions where ILR provision was at a pilot stage:

I think one thing that we need to work on is doing more information sharing with the [prosecution] about the service and just ensuring that we’re receiving all the referrals that we need to be. I’ve, kind of, found that when I’m speaking one on one with [a prosecution] solicitor, sometimes they’re not really aware of the extent of our representation and they assume that we speak to [the complainant] and then pass them back to the [prosecution]. Where, you know, we actually give them representation right up, including our court hearings. So, I think that’s one thing we’ve realised we need to maybe work on.^[382]

In Northern Ireland (in the context of ILA provision), this possible confusion was addressed by developing “guidance manuals [and] a memorandum of understanding basically of the roles and responsibilities of each stakeholder and partner in the system”.^[383]

A practical issue that arises in this context of the clarity of roles in Scotland relates to the Crown’s common law legal obligation to take a complainer’s views on a section 275 application following RR.^[384] Clearly post the introduction of ILR, assuming that a complainer instructs an ILR lawyer, then the role of the Crown is no longer necessary. However, one cannot assume that every complainer will want to instruct an ILR and if that occurs, the Crown’s common law duty remains. Therefore again, effective communication between the relevant parties involved is key. As one participant noted:

For us we have a concern that we would be unnecessarily recontacting complainers. And so we would limit our recontact cases where we haven’t heard and that may be, they say “oh no, I have instructed”, but in cases I haven’t, we could then explore with them what requires to be explored [in terms of our common law duty] so that it was our sort of first area of where we see there being room for a redesign or a better development of the of the system to put a duty on ILR to intimate their instruction and obviously intimate their withdrawal as well if they were no longer acting.^[385]

A stakeholder also raised the fact that the provisions as drafted contained no requirement for the ILR to indicate to the court itself that they were acting.^[386]

6.5 Chapter summary

Several themes can be drawn from the research. First, collaboration between all stakeholders was seen as key, both in the design and implementation of ILR. The importance of involving complainers in service design was stressed.

Secondly, ILR providers spoke of the delicate balance that needs to be maintained between providing independent advice and representation, while also maintaining good working relationships with prosecutors.

Thirdly, research participants suggested that the proposals in the Bill relating to the disclosure of evidence as currently drafted risk overcomplicating matters, creating delays and creating unnecessary work for the Crown. A simpler system would be for the ILR provider to apply to the court for disclosure – in those cases that require it – and intimate that application to the Crown and defence. This application should be made within seven days of receipt of the section 275 application (or another specified period) or later on cause shown. The Crown and the defence would be required to state any objection to disclosure also within a specified time period allowing the court to deal with the matter administratively if no such objection is received.

Interviewees raised other issues with the Bill as presently drafted. First, the legislative regime that covers the use of Crown disclosure applies only to the defence. Given that Crown disclosure in a sexual offences case contains highly sensitive information, there is a need that the relevant rules on disclosure are amended, so that they extend to those who provide ILR for complainers. Second, there is presently no requirement for the complainer’s legal representative to indicate to the court itself that they are acting.

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