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

Updates following Stage 2 of the parliamentary process

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

A second new topic – victims’ right to receive information – was also added to the Bill at Stage 2. This new part of the Bill 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 VNS legislative reforms, covering the provisions added at Stage 2 and those in the amendments planned for Stage 3.

We have reviewed the original EQIA 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.

We have assessed that the changes made at Stage 2 do not change the conclusion of the original EQIA, namely that the Bill will have a positive impact on victims and vulnerable parties, regardless of protected characteristics, and that the Bill will not discriminate against people because of any protected characteristics they have.

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.

It was considered that a reduction in the jury size could potentially advance the equality of opportunity of jurors and foster good relations in relation to all protected characteristics in that it could increase participation and support diverse interactions.

However, a significant minority of consultation respondents and stakeholders considered that a reduction in jury size would reduce the diversity of juries so that they become less representative of broader society, including in terms of protected characteristics (although there continues to be a lack of data on the demographic make-up of juries in Scotland to evidence this).

It is also considered by many that a larger jury ensures a wider demographic pool of jury members which could reduce the impact of unconscious biases and therefore potential discrimination of the accused, complainer or other witnesses. For example, the Scottish Solicitors Bar Association has argued that “15 jurors will provide the broadest range of views and therefore improve the quality of deliberation and the likelihood of a just verdict”.

We are not aware of any data on the demographic make-up of juries in Scotland that would evidence such claims, and across much of the common law world twelve person juries are considered to be of sufficient size to meet equality requirements. However, as the perspectives outlined above illustrate there is a viewpoint that retention of juries of 15 may advance equality of opportunity of jurors in relation to all protected characteristics.

Pilot of single judge rape trials

During Stage 2 of the Bill, the provisions that provided for regulations to enable a pilot of single judge trials for rape and attempted rape were removed from the Bill. There is therefore no legislative provision for a pilot to be held, and the policy will not proceed at this time.

It is important to note that any pilot would have been time-limited, and that neither the criteria for the cases to be included in the pilot nor the time period during which the pilot would run had been specified. It is therefore not possible to identify which complainers and accused persons would have been impacted by the pilot.

However, as set out in the original EQIA, any effects on complainers arising from the pilot would have had a greater impact on women and girls, who make up the majority of complainers in rape and attempted rape cases.

The policy objective of the pilot was to gather evidence to inform debate on how Scotland’s justice system responds to the most serious sexual crime, and in particular to allow an assessment of the system by which verdicts are reached. It was hoped that the pilot would provide valuable insights into whether single judge trials could improve complainers’ experiences of the court process and increase efficiency.

These policy objectives will now not be met through a pilot of single judge trials, but other measures in the Bill are designed to contribute to these objectives.

Gathering evidence to inform debate

At Stage 2 of the Bill, in the context of the pilot being removed from the Bill, the Scottish Government lodged amendments intended to increase the evidence base on decision-making by an alternative means: amending the Contempt of Court Act 1981 to allow for research into criminal juries (where permission has been granted by the Lord Justice General). Speaking to the amendments, the Cabinet Secretary for Justice and Home Affairs noted that research into jury deliberations “could help us better understand whether and how rape myths affect verdicts, and what measures could effectively address them”.

A further Scottish Government Stage 2 amendment also provided that if Scottish Ministers conduct or commission research into research with juries that has been approved by the Lord Justice General, then Ministers must publish a report on the research and lay it in the Scottish Parliament. They must also publish and lay their response to the research, including any recommendations.

As the Cabinet Secretary explained to the Criminal Justice Committee, “this ensures that the Parliament can consider the research findings and government’s response, and we can continue the important debate around the effectiveness of our criminal justice system”.

These amendments do not apply exclusively in sexual offence cases: research could theoretically be carried out in any type of solemn case.

The amendments were unanimously agreed to by the Criminal Justice Committee.

Improving the experiences of complainers in serious sexual assault cases

The central aim of the Bill is to improve the experiences of victims and witnesses in Scotland’s justice system, particularly the victims of sexual crime. To that end, the Bill includes a package of measures designed to embed trauma-informed practice across the justice system and address – through permanent reforms - longstanding concerns and difficulties in how justice operates for victims of the most serious sexual crimes.

Most significantly, the Bill establishes a new Sexual Offences Court (SOC) to improve the experience of complainers and support them to provide their best evidence – including through expanding the use of pre-recorded evidence, and requiring legal professionals to complete trauma-informed training before they are able to appear in the Court. The creation of the SOC will also help reduce delays in sexual offence cases coming to trial, by supporting flexible use of court and judicial resources. Once the SOC is established, it is likely that most, if not all, cases that would have been heard in any pilot of single judge trials will be heard in the SOC. (The High Court will still retain jurisdiction to hear rape and attempted rape cases, however, and so whether or not a case is prosecuted in the SOC will be a matter for the Lord Advocate, acting independently in each respect of each individual case.)

The Bill also creates a new right to independent legal representation (ILR) for complainers when applications to lead evidence of their sexual history and/or their character (section 275 applications) are made in sexual offence cases. These measures are intended to improve complainers’ experience in sexual offence trials, in particular their understanding and ability to provide their views and be heard in court.