Victims, Witnesses, and Justice Reform Bill: Justice Secretary's letter to Liam Kerr MSP

To: Liam Kerr MSP

From: Justice Secretary Angela Constance

I refer to your letter of 14 September about the Victims, Witnesses, and Justice Reform (Scotland) Bill to the First Minister. I am replying as Cabinet Secretary with responsibility for the Bill.

As you know, the Bill sets out an ambitious programme of transformation, informed at every step by the voices of victims themselves.

In areas such as the abolition of not proven and the establishment of a Victims and Witnesses Commissioner, it responds directly to calls for change from victims and bereaved families.

In the package of measures establishing a Sexual Offences Court, reforming the law on anonymity, providing independent legal representation and establishing trauma-informed practice it responds particularly to the concerns of those who are victims of sexual offences, predominately women and girls.

As you are aware, I have worked collaboratively and constructively with Members from across Parliament to reach consensus on the Bill wherever possible, including with you and your three colleagues who have lodged amendments to the Bill, and I am pleased that I will be supporting many of the amendments.

Let me respond to each of your points in your letter in turn in relation to the amendments that Parliament will debate.

Giving victims more information about their case when prosecutors and defence lawyers come to an agreement on a plea deal

I am pleased I have been able to work directly with Russell Findlay on amendment 38 which will mean that in solemn cases, where a victim has indicated that they want to receive information on plea negotiations, they will have a right to be proactively informed by the prosecutor if a plea adjustment has been agreed. In addition, I was pleased to offer the power to allow for an extension to summary cases in future. This approach, which we discussed and worked together on, enhances victims’ rights, supports informed choice, and strengthens the justice system’s accountability.
I do not support other amendments which would deny victims that choice and compel them to be contacted. This goes against the trauma-informed approach we want for our justice system. Plea adjustments were not in the Bill as introduced so I am sure you will be pleased at this major change to the Bill, which we can all support.

Allowing the Parole Board to block the release of killers who refuse to disclose the remains of their victim’s body

As a member of the Criminal Justice Committee, you are aware that the Committee agreed a Stage 2 amendment from Jamie Greene on the non-disclosure of victims’ remains and this was supported by the Scottish Government.
This is often known as ‘Suzanne’s Law’, named after Suzanne Pilley, and I am grateful to her family and Arlene Fraser’s family for meeting with me in the summer to discuss the further steps we are taking. I have continued to work with Jamie Greene on this issue and this has resulted in amendments that will strengthen the factors that the Parole Board, and where relevant Scottish Ministers, must take into account when considering release and licence conditions. Victim support organisations are also supportive of these amendments.
I will not be supporting further amendments on this issue, which could lead to Parole Board decisions being more vulnerable to legal challenge. This is a situation I’m sure you would agree is not in the best interests of victims and their families.

Empowering more victims to have a victim impact statement read out in court

Again, I am pleased to have been able to work on this important issue with Jamie Greene since Stage 2 to bring forward amendments which will extend eligibility to give a victim statement to victims in all solemn offences. The Scottish Government understands and recognises the value of victim statements, which enable the victim’s voice to be heard and the impact of the crime on them to be taken into account, which is why I hope you will have welcomed my recent commitment to take forward the piloting of different ways in which statements can be delivered, in the Sexual Offences Court.
I will not be supporting Sharon Dowey’s amendment in this area, which would require all victim statements to be read aloud in court, no matter what the victim’s wishes were. I do not agree that choice should be removed from victims and strongly believe the mandatory nature of this provision will cause additional trauma and emotional distress. There may be many reasons why someone would not want their statement read aloud in an open court, particularly if it contains sensitive information. In my view, this could reduce engagement from victims as they may choose not to submit a statement at all if they know there is no choice in it being read aloud and not being solely for the judge. We will not support anything that ultimately discourages participation and limits the scope of meaningful victim input.

Requiring the new Victims and Witnesses Commissioner to conduct a Scottish ‘grooming gangs’ inquiry

I assume this is in relation to your own amendment that seeks to add research on child sexual abuse and exploitation to the remit of the Victim and Witnesses Commissioner, therefore you will know that this would not result in a ‘grooming gangs inquiry’ as you suggest.
Protecting children from harm is an absolute priority for this Government and I welcome the findings of Baroness Casey’s Audit. This is an area in which work is already being undertaken by the expert National Child Sexual Abuse and Exploitation Strategic Group and through a Police Scotland review of historic and existing cases of group-based child sexual abuse and exploitation.
These are the proper responses to ensure that the appropriate specialist knowledge and expertise is applied to this serious issue in a timely fashion. Adding these responsibilities to those of the Commissioner would create unnecessary delay given the post is still to be established and recruited for, and inefficient duplication, given the work outlined above and the engagement of the Children and Young People’s Commissioner in this work.

Ensuring that victims are always notified if a decision is made not to prosecute an offender

I have set out directly to Sharon Dowey here why I do not support her amendment on information about not taking forward prosecutions, for a number of reasons - including relating to trauma-informed practice and concerns as to how this could be operationalised.
Ensuring victims can make an informed decision would require the police to ask every victim at an early stage to take a view on a question they are unlikely to have properly considered at that point. It is also not unusual that a final decision as to whether to prosecute or not in any particular case can be made many years after the initial report, due to new evidence coming to light, for example. Mandating communication of a decision that is not, in fact, conclusive could cause unnecessary confusion or distress for victims and may undermine confidence in the justice process.

I hope I have reassured you that I have carefully considered the issues you have raised here and have worked with MSPs from all parties on amendments to ensure that the Bill is improved. In your own party, as well as amendments above, this includes working with Pam Gosal and Sharon Dowey on non-harassment orders.

Where I do not support amendments, this is due to concerns regarding the likelihood of legal challenge, legal competence concerns, unintended consequences that would not conform to trauma-informed practice, or significant operational difficulties.

Yours sincerely

Angela Constance