Victims, Witnesses, and Justice Reform (Scotland) Bill: business regulatory impact assessment update

Victims, Witnesses, and Justice Reform (Scotland) Bill: Update to Business and Regulatory Impact Assessment

Introduction

The purpose of this document is to provide an update to the original Business and Regulatory Impact Assessment (BRIA) published for the Victims, Witnesses and Justice Reform (Scotland) Bill.

As such, it should be read in conjunction with the original BRIA.

Background

The Victims, Witnesses, and Justice Reform (Scotland) Bill (“the Bill”) was introduced to the Scottish Parliament on 25 April 2023.

The Bill responds to concerns raised about the need to improve the experiences of victims and witnesses within Scotland’s justice system, especially the victims of sexual crime. At the same time, it continues to safeguard the operation and principles of the system and protects the rights of those accused of crime.

A Business and Regulatory Impact Assessment (BRIA) was published when the Bill was introduced to Parliament. The BRIA considers the costs and benefits of the policies the Bill in relation to the public, private and third sector in Scotland.

Stage 2 of the Bill’s parliamentary process took place between 12 March 2025 and 2 April 2025. Further information about changes that were made to the Bill during this stage can be found on the Scottish Parliament website.

Updates following Stage 2 of the parliamentary process

A supplementary Financial Memorandum has been published. This provides further details about costs relating to changes made to the Bill at Stage 2.

A new topic – jury service: assistance for jurors with communication – was added to the Bill at Stage 2. A standalone BRIA has been published for this policy.

Another new topic – victims’ right to receive information – was also added to the Bill at Stage 2. This is a new Part 2A of the Bill and contains provisions to reform the Victim Notification Scheme (VNS). We intend to lodge further amendments at Stage 3 related to VNS reform. Impact assessments are being carried out as part of the policy development for the overall legislative VNS reforms, covering the provisions added at Stage 2 and those in the amendments planned for Stage 3.

We have reviewed the original BRIA that was published when the Bill was introduced and have assessed that the following updates are necessary in relation to changes made to policies in the Bill at Stage 2.

Jury size

When the Bill was introduced, it sought to reduce the size of criminal juries from 15 jurors to 12. However, at Stage 2 amendments were agreed that retain juries of 15.

The BRIA published on introduction of the Bill noted that reducing the amount of time spent on jury duty by 20% (as a consequence of reducing jury size by 20%) could result in savings for businesses, third sector, and public sector organisations across Scotland, as it would reduce the number of staff they needed to excuse for jury service; reduce the need to put in place alternative staffing arrangements; and lower spending for those employers who compensate employees during their jury service.

Now that the Bill has been amended to retain juries of 15, these savings will not be made.

Sexual Offences Court

Changes made during Stage 2 to Part 5 of the Bill, which establishes a national specialist Sexual Offences Court (SOC) for Scotland, mean that there is an update to ‘Legal Aid Impact Test section’ of the original BRIA in terms of the SOC.

In the original BRIA we assessed that while there are no direct costs to the Scottish Legal Aid Board (SLAB) arising from provisions establishing the SOC, the SOC will require changes to existing legal aid provision. This remains the case.

As set out in the original BRIA, under current arrangements, an accused who is granted legal aid in a case indicted to the High Court automatically receives an enhanced entitlement to legal aid for the purposes of instructing an advocate or solicitor advocate. This reflects the fact that solicitors are not entitled to appear in the High Court. In the sheriff courts, where cases can be conducted by solicitors as well as advocates/solicitor advocates, an accused wishing to receive funding to instruct an advocate/solicitor advocate must apply to SLAB for sanction to do so. As the SOC will bring cases together that would previously have been heard across these two courts there is a need to ensure that accused persons in the types of cases which, under existing structures, are prosecuted in the High Court, will be entitled to legal aid funding to instruct counsel when indicted to the Sexual Offences Court.

Provisions in the Bill, as amended at Stage 2, provide three routes for accused to access counsel in the SOC.

1. Restrictions on rights of audience

Rights of audience will be restricted in the SOC for cases which involve offences that are always, or almost always, indicted to the High Court and in which accused are therefore typically represented by counsel. This means that solicitors will be unable to appear where any of these offences appear on an indictment giving accused an entitlement to legal funding to instruct an advocate or solicitor advocate where these offences appear.

These offences are:

• murder
• rape
• attempted rape
• attempted murder
• offences under section 1 of the Domestic Abuse (Scotland) Act 2018 which libel non-consensual sexual intercourse
• offences which attract a minimum custodial sentence of 5 years or more and
• Offences brought forward under the new evidence exception as set out under section 4 of the Double Jeopardy (Scotland) Act 2011

2. Assessment of likely sentencing outcomes

The accused person will be able to instruct counsel based on the sentence that they are likely to receive if convicted of the offences for which they are being prosecuted. Specifically, SLAB must grant sanction for counsel to accused, upon application, where any of the following criteria are met:

• there is a reasonable expectation that, if found guilty, the accused would receive a custodial sentence in excess of 5 years
• there is a reasonable expectation that the court may impose a Risk Assessment Order

3. In all other instances where SLAB consider it appropriate

Accused persons will also be able to apply for legal aid funding to instruct counsel in the SOC under the existing appropriateness test. This takes forward an established process that is already in place in the sheriff courts whereby accused who wish to be represented by counsel can apply to SLAB for sanction. Applications are considered on a case by case basis and granted where SLAB consider it ‘appropriate’ for counsel to be instructed in any particular case. Appropriate is not defined in legislation and has been interpreted widely by SLAB but factors that may justify the employment of counsel include where a case is novel or complex or where a case is being considered in a forum in which it is reasonably expected that counsel would appear.

The approach set out above has been specifically developed with the intention of ensuring broadly the same balance of accused represented by counsel and those represented by a solicitor in the SOC as occurs under existing arrangements. While there may be some variations in who is able to access legal aid funding to instruct counsel in the SOC compared to under existing structures these are expected to be minimal and so are not expected to have a significant impact on the legal aid fund or the distribution of legal aid to accused.

Provisions are also included in the Bill which required Scottish Ministers to review legal representation in the SOC including access to legal aid for accused. This will provide insight into how legal aid is operating in the context of the SOC and if any changes are required to ensure equity in the distribution of legal aid funding.