Improving victims' experiences of the justice system: consultation

Introduction and general observations about the consultation (followed by reasons for answer to question 15)

Introduction

The Scottish Criminal Cases Review Commission plays an integral part in the criminal justice system in Scotland, and is committed to addressing
potential miscarriages of justice (https://www.sccrc.co.uk/).

We recognise the motivation of the consultation in seeking to improve justice for all – and we welcome the opportunity to comment on the consultation and to consider how the proposed reforms may fit within the justice system in Scotland. We have made some general observations
before commenting on the particular chapters in which we have an interest.

General Observations on the Consultation

The criminal justice system in Scotland is adversarial in nature, and involves balancing the rights of different individuals. We would stress the importance of achieving the necessary balance. While the consultation correctly emphasises the importance of treating complainers and witnesses as individuals to whom those working in the justice system need to listen, and whose rights must be respected, the Commission would also emphasise that the equality of arms and the rights of the accused must also be maintained. These concepts are central to our justice system.

The consultation provides that “victims of crime should be heard and be provided with information in an accessible and timely manner; that they should feel safe and have confidence in the structures that are designed to protect them; and that they should be treated with compassion, at every stage of their journey through the justice process and beyond.” These are crucial safeguards but they must not diminish the rights of the accused, such as disclosure of information, funding, representation and cross-examination, nor may they diminish the presumption of innocence unless and until guilt is established.

We consider that several proposed reforms may be viewed in a positive manner but that any reforms must be taken forward with care, because
there is a danger of a ripple effect – in a justice system that is complex and interconnected, one change might have consequences that are unintended or are greater than expected.

The consultation has the stated aim of improving the experiences of adult complainers and children on the basis that their current experiences may
be factors in the low conviction rate in sexual abuse cases. But the reasons for the low conviction rate are multifaceted. We would suggest that the responses to this consultation must be read with the responses to the (now-closed) “Not proven” consultation. (https://www.gov.scot/publications/not-proven-verdict-related-reforms-consultation/). Moreover, simply increasing the conviction rate in sexual abuse cases does not necessarily equate to “success” as far as an effective system of justice for all is concerned. We would add that, whilst the system “is still in recovery but has … modernised at rapid pace”, cost savings alone must not dictate the nature or pace of change.

Our responses to the chapters of the consultation in which we have an interest follow.

Reasons for answer to question 15:

We support the concept of trauma-informed training for all involved in the criminal justice system. We would endorse the general view expressed elsewhere that legal professionals and others are “workers, in the context of their own role and work remit, [and] have a unique and essential trauma-informed role to play in responding to people who are affected by trauma”*.

There is a need for all complainers and witnesses to be treated in a consistent and fair manner. This should not be a piecemeal system. To that extent, the introduction of recognised standards is a laudable aim.

We note there is already statutory provision for “trauma-informed care” for health-care professionals (under section 10 of the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021). In the present context, however, there must be a clear and common understanding about what the term “trauma-informed practice” actually means.

While the consultation refers to the development of a knowledge and skills framework** it is unclear what this means, what stage this has reached, and what consultation with the legal profession and others has been (or will be) undertaken.

In the case of the legal profession, one assumes that relevant training may be the subject of mandatory continuing professional development (CPD), with similar requirements for judicial office holders and court staff, as may be appropriate. These may be matters for consideration by the Faculty of Advocates, the Law Society of Scotland, the Judicial Institute for Scotland, and the Scottish Courts and Tribunals Service (SCTS), amongst others. Nonetheless, any relevant training requirements must be, in our view, clear and easily accessible for all.

The consultation mentions that it is “key that each of the criminal justice agencies, third sector support organisations and the legal profession consider their operational processes and procedures from a trauma-informed perspective.” We note, however, that separate consideration may require to be given to the distinct responsibilities towards complainers and witnesses of the prosecution and the defence within the legal profession as a whole.

The trauma-informed training requirement seems to be predicated on the need to maintain appropriate behaviour and communication with complainers and witnesses. This would appear not to directly affect the fairness of the trial process from the perspective of the accused – a defective representation appeal is not, after all, a “performance appraisal”***. Nonetheless, we note that adherence to a trauma-informed approach must not obstruct the right of the accused and their representatives to conduct a full and robust examination of the evidence that the Crown has led, or to lead evidence of their own.

One assumes that, if a professional in the justice system were to choose not to participate in trauma-informed training, they would be precluded from participating in sexual offence cases. (The extent of such implications may depend on arrangements for a specialist court for sexual offences, as discussed in Chapter 7.)

*NHS Education Scotland National Trauma Training Programme - https://www.nes.scot.nhs.uk/news/the-national-trauma-training-programme-nttp/

**The consultation notes that the Scottish Government, in consultation with the Victims Taskforce, commissioned NHS Education for Scotland to create a “Knowledge and Skills” framework specifically to support the development of a trauma-informed workforce in the justice sector.

*** SCCRC position paper on defective representation - https://irp.cdn-website.com/8f56052e/files/uploaded/Def%20Rep%20Position%20Paper.pdf

We refer to our answer to Question 15.

The current standards of service are set out under section 2 of the 2014 Act. They apply only to certain office-holders and organisations, such as the Lord Advocate and SCTS, which may not be sufficient to achieve the intended effect as regards the overall incorporation and adoption of trauma-informed practice by all those involved in the criminal justice system in Scotland.

Whilst legislative provisions may be useful in order to promote consistency and best practice, it should not delay the promulgation of practical guidance, which could be made available in the meantime.

Please see our answer to Question 15 regarding the meaning of trauma-informed practice and the requirements for any training.

We are unsure how exactly it is envisaged that the court practices would change if the court had such a duty, and the effect of any direction to consider a trauma-informed approach upon existing duties to the court, clients and witnesses. It is unclear, for example, whether it may be intended that legal professionals will be required to act (or refrain from acting) consistently with accepted standards of trauma-informed practice. These may be matters for further consideration by the relevant professional bodies. But if a trauma-informed approach requires to be followed, we agree that it would be for the courts to oversee that approach*:

“This trial was conducted in a manner which flew in the face of basic rules of evidence and procedure, not only the rape shield provisions but also the common law. It ignored a number of principles which have been laid down and emphasised in several recent decisions of this court. If justice is to prevail in the prosecution of sexual offences, it is imperative that those representing parties abide by these basic rules. If they do not do so, the judge or sheriff must intervene to remedy the matter. During her cross-examination, this complainer was subjected to repetitive and at times irrelevant questioning. She became extremely distressed and rightly so. The court did nothing to intervene. Were this to be repeated, the situation in sexual offences trials would be unsustainable.”

We recognise that criticisms of sexual offence cases command headlines. Any reforms must be measured and reflective of what could and should be changed in order to improve the criminal justice system.

*Macdonald v HM Advocate 2020 JC 244, [2020] HCJAC 21, para [47].

Somewhat agree.

We note that virtual summary trials were developed because of the requirements of social distancing and of maintaining the fulfilment of justice through the pandemic. We do not see that abolishing them now as the pandemic enters another phase is sensible, given the certain advantages they bring with them (discussed under Question 20 below). But we do not advocate a blanket approach as there are several factors which must be assessed on a case-by-case basis in order to make sure that a fair trial takes place, otherwise a miscarriage of justice may result.

(It is worthwhile to note that the Commission has not yet received a stateable application that the use of a virtual court gave rise to a potential miscarriage of justice.)

We consider that virtual trials lend themselves to certain types of cases, such as road traffic cases, where there are, typically, few witnesses and there is little legal complexity. Virtual trials can also be used to support evidence-facilitation from expert witnesses or from witnesses who are travelling long distances to attend court. Importantly, however, there may be implications, too, for vulnerable accused who cannot participate fully by remote processes. This reflects our observations about the need to maintain balance. It is preferable in all cases, therefore, that the respective parties agree that the relevant evidence and/or trial can be conducted effectively in that manner. As long as there is no blanket approach, there seems to be good reason to continue to use the virtual system where it is appropriate to do so.

Please see our answers to Questions 19 and 20.

Decisions about the use of virtual courts should depend on the circumstances of individual cases. A presumption would tend to exclude consideration of those circumstances, and even if rebuttable, may be applied inconsistently.

We understand that about 25 percent of all outstanding summary trials are domestic abuse cases. Taking such cases out of existing court programmes would free up court time for other cases, but this cannot be, in our view, the determining factor in deciding whether to use virtual courts for domestic abuse cases.

The increased use of virtual courts would, in any event, require the provision of additional resources, such as sheriffs, sheriff clerks, prosecutors and defence agents, and could exacerbate the existing problem whereby an accused cannot find a defence agent to instruct. There may also be equality-of-arms considerations, such as additional-equipment costs for the defence in undertaking the necessary preparation, costs which must be borne within the current financial constraints.

“Necessary funding would be required for all parts of the justice system to enable virtual trials to operate successfully.”*

*Report to the Lord Justice General by The Virtual Trials National Project Board - https://www.scotcourts.gov.uk/docs/default-source/default-document-library/reports-and-data/report-to-the-lord-justice-general-virtual-summary-trials-docx-final.pdf?sfvrsn=a5f62f35_4

Please see our answers to Questions 19 – 21. We reiterate the need to maintain balance, equality of arms and the rights of vulnerable accused.

We refer to our answer to Question 15. Crucial to making any changes is the need to respect the rule of law and not to compromise the fairness of trials or the rights of the accused, in accordance with Article 6 of the European Convention on Human Rights.

Reasons for supporting a review - Defence statements can be useful for their primary purposes, namely to assist the Crown in discharging its duty to disclose information relevant to the defence and to assist the court in case management and its identification of the real issues in dispute. In practice, such statements vary greatly depending on the desire and ability of practitioners to provide information. This may not be attributed solely to a lack of willingness to do so but may be a consequence of other matters relating to Crown disclosure and the timescales in which defence preparations may be carried out.

In order that defence statements can be used in a more meaningful way – ie, to ensure proper case management and the avoidance of miscarriages of justice – we recommend that a review in the full context of all pre-trial preparation by the court, the Crown and the defence be undertaken.

How this should be progressed - We understand that Lady Dorrian’s Review gives consideration to a more exacting requirement on an accused to provide a meaningful defence statement, specifying, for example, the extents to which the defence may take issue with the Crown case in the context of existing statutory duties to agree uncontroversial evidence. This may be appropriate but can work only if the defence has been fully apprised of the Crown case. More exacting requirements on the defence will be meaningful only if a similarly exacting standard is applied to the Crown such that, by the time of submission of a defence statement, the defence has been fully informed and has had appropriate time to respond.

We are of the view that the court’s consideration of defence statements (and any requirement for detailed information from the defence) should follow only where the court has been satisfied that (a) full disclosure has been made, and (b) that the defence have had sufficient time to consider and prepare in relation to the whole Crown case. There ought to be, in our view, a presumption against the Crown’s seeking to rely on introducing evidence at late stages in proceedings by way of “section 67 notices”. The use of such notices is commonplace and often shortly before trial. This runs counter to the concept of case preparation in advance of preliminary hearing/first diet at which case management issues ought to be clearly identifiable. The Crown should be prevailed upon to confirm that preparation has been fully completed by that stage.

We consider that more exacting requirements on the defence ought not to be overly restrictive, however, and some allowance ought to be made for matters which may arise unexpectedly at trial. Where an accused raises matters in the course of a trial which are inconsistent with a defence statement, it may be appropriate in certain circumstances for this to be the subject of comment. Care should be taken, however, in the exercise of such discretion. This should occur only where there is a major discrepancy and not in relation to matters of detail. An unduly inflexible approach may give rise to miscarriages of justice. In the event that the prosecutor seeks to make such comment, this should be done only with the consent of the trial judge.

We consider that there may be scope for defence statements to raise issues, other than evidential ones, which may require to be addressed in advance of trial and as part of the general case management in order to focus the real issues in dispute. Whilst preliminary pleas and issues should be dealt with at an early procedural stage, other matters which have a direct bearing on the trial could be incorporated for consideration. An example would be the appropriateness or otherwise of remarks being made to the jury about false assumptions in rape cases. This may be case-dependent but the inclusion of any objection in a defence statement would allow the matter to be addressed in advance of trial, which would, in turn, allow matters to proceed without the trial process being interrupted for the purpose of determination at that stage. This would enable the trial judge to provide the jury with suitable directions, oral or written, either in any opening remarks or in the charge.

We consider that the greater opportunity for such matters to be considered at the earliest possible stage may reduce the risk of potential miscarriages of justice arising in relation to misdirection of the jury.

We recognise the concerns that are raised regularly about the experience of complainers in cases involving serious sexual offences, as exemplified in the comments by the Lord Justice General in Macdonald (see our answer to Question 18 above). We recognise, too, that the central features of a specialist approach in dealing with serious sexual offences – the expansion of pre-recorded evidence, judicial case management and the development of trauma-informed training for all personnel – are distinct from the operation of a specialist sexual offences court. However, we consider there is some force in the argument that those features may be delivered most effectively through the operation of a specialist sexual offences court. The environment of such a court, to include the appropriate training for those involved in the operation of the court – the judiciary, the prosecutors and the defence lawyers – could only help to focus the minds of all personnel on the implementation of the central features of a specialist approach.

We have certain misgivings about how such a court would operate outwith the current court framework. The consultation itself foreshadows some of the problems that the establishment of a separate court would create.

We regularly review cases in which the indictment libels both serious sexual charges and serious non-sexual charges. If one takes the view that the creation of a specialist sexual offences court is an effective way by which to implement the central features of a specialist approach in sexual offence cases, charges of non-sexual offences that would otherwise be libelled on the same indictment as charges of serious sexual offences should, in our view, still be libelled on the same indictment. There are several reasons why one would not wish to indict those different types of charges separately.

This approach, though, could not be followed where a murder charge appears alongside a charge for a serious sexual offence, as acknowledged in the consultation. Similarly, we note, according to Lady Dorrian’s Review, that the High Court would still hear cases where an order for lifelong restriction was expected to be a consideration upon conviction for a sexual offence. It seems to us to be incongruous to legislate for the creation of a new specialist sexual offences court, separate from the High Court and the sheriff courts, embedded by the above-mentioned procedures, processes and training, in the knowledge that, on occasions, individuals charged with committing such offences cannot be tried or sentenced in such a court. Moreover, the creation of a new court, separate from the High Court and the sheriff courts, would create another tier in a complicated court structure.

We see no reason why the specialist court could not sit within the High Court. The High Court currently deals with individuals who are charged with the most serious sexual offences, including rape and attempted rape. The High Court is suitably placed to subsume the specialist court within it. This would, of course, limit the specialist court to the most serious charges of sexual offences. But one advantage of this is that those operating the specialist court would comprise some of the most experienced members of the profession.

Please see our answer to Question 57.

We note that it is likely that, in the vast majority of cases before such a specialist court, with a sentencing limit of 10 years’ imprisonment, the court would not be precluded from imposing sentence. However, with the creation of such a court, to include the training of specialist presiding judges, it again seems counterintuitive for such a court not to have sentencing jurisdiction in all cases. This reason is over and above the general principle that sentencing is for the same court which heard the case at trial, given that it will have heard first-hand all the relevant facts and circumstances.

See our answer to Question 60. (Further, if the specialist court were to be within the High Court, as discussed above, there would not be a limit to its sentencing powers.)

We believe that, given the existing sentencing powers of sheriffs and High Court judges, a specialist court with a sentencing limit of 10 years’ imprisonment should be presided over by High Court judges.

Please see our answer to Question 62.

As indicated, we support trauma-informed training for all involved in the criminal justice system.

Please see our answer to Question 15.

The provision for an accused to be judged by their peers is longstanding and a fundamental tenet of Scots law. A single decision-maker could hold particular views that cannot be moderated by other people. This may be especially pernicious in cases of a sensitive nature such as sexual offences. It is, in fact, often said by judges in their charge to the jury that the decision they are taking is “too important to be left to lawyers”. As long as juries are given adequate directions, they are capable of reaching discerning decisions in complex cases.

See our answer to Question 67.

Everybody comes to decision-making with their own world views. More has recently been done to explain “rape myths” to jurors but more could be done: see also our response about more meaningful defence statements.

The trial length may be shorter simply because there are fewer variables involved and decision-making would presumably be shorter. However, in New Zealand (NZ) juries are still involved in specialist sexual offences courts and the consultation tells us that trials in those courts progress faster than they previously did.

A complainer may find it easier to give evidence before a single judge as opposed to 15 strangers; however, with the NZ model, the consultation again tells us that complainers apparently felt better prepared for trial and were less anxious during the process.

The Scottish Government has indicated that it wants conviction rates for sexual offences to increase, but it has done so without indicating that it fully understands why the conviction rate is lower than for non-sexual offences. The loss of juries for particular offences may lead to an undermining of their use in other cases unless it is explained (based on evidence) why jurors cannot follow evidence and directions, or are otherwise unsuitable decision-makers, only in sexual offence trials.

We believe that single judge trials for serious sexual offences could only lead to an undermining of confidence in the right to a fair trial for those accused of serious sexual offences.

We refer to our answer to Question 72. Initially, one needs to know why it is necessary to remove juries from cases dealing only with serious sexual offences. There have previously been discussions about the ability of juries to understand complex fraud cases, for example, but the same issue may not necessarily arise in the present context.

Notwithstanding the jury research to which the consultation refers, it remains difficult to know why juries should not deal with sexual offences but should deal with murders, frauds, etc. We remain concerned that removing juries for this one class of serious offences may lead to a perception of unfairness, and an increase in claims of miscarriages of justice.

We have some reservations about the operation of any such pilot scheme, to the extent that it would have to be very carefully considered, lest it be productive of applications to us in respect of alleged miscarriages of justice. This is alluded to above in relation to virtual trials, although these have not (at least as yet) produced stateable applications.