Improving victims' experiences of the justice system: consultation

Should be independent of the Government. The Commissioner should be able to hold Scottish Government to account. We need to give the Commissioner the same level of gravitas as any other independent commissioner to ensure that victims experiences are given the high regard that they deserve.

With so many interdependent parts of the system it may be be that legislative footings will be more effective and therefore taking the time to establish the Commissioner in legislation would be worthwhile.

Accountability that this brings will be really important in achieving the vision. We need to ensure the victims journey in the system not only considers but prioritises victims rights and needs.

Gives stronger rights and recourse to victims of crime. Advantage of a top down and bottom up approach. Strengthens accountability.

Production of frameworks, action plans, annual reports, publicly available also enhances accountability of the role.

Again strengthens accountability.

In additional the main functions should include actively seeking contributions from lived & learned experience groups to form Victims’ Code & ensuing practice.

Experiences of seeking protective orders for example in Civil Justice (for example child contact in domestic abuse cases) can be particularly difficult. The links between the 2 systems in these cases can have conflict. The experience of victims in both need to be considered as they are inextricably linked. The Commissioner for Children & Young People also has a role here where they could jointly hold Government to account.

At (d) this will be particularly important in cases such as Domestic Abuse (on holiday for example) and Trafficking.

It would be helpful to also consider the experience of victims who have not reported and are not part of the Criminal Justice System due to lack of trust or challenges with communication so as to understand the reasons for this and to consider any of the points raised.

The difficulties in 'requiring' people to give evidence can be re-traumatising. If this happens the legislative framework would need to take cognisance of unintended consequences to victims such as re-traumatisation. This has to be balanced with the need to balance the power dynamic between victims and the system.

It would be useful to clarify whether the 'requirement' would be professionals or individual victims. Choice needs to be at the forefront for victims and we need to be careful of unintended consequences to victims. Where possible choice should be build into the proceedings within a trauma informed framework.

(d) we are unclear who 'person' might be in this question and would welcome some consistency in the wording to clarify.

Commissioner needs to be engaged with victims to ensure that their voice is consistently and continually embedded and acted on. This needs to be diverse and continually reflect our society. Specific attention to protected characteristics needs to be at the forefront as does lived and learned experience.

Empowerment of victims needs to include involvement, collaboration and co-production rather than only consultation - similar to the CYJP Commissioner.

All - need to offer a menu of options to allow victims to get involved at whichever level of engagement is right for them (empowerment), ensuring this is a trauma informed approach and the underpinning of each of the options offered.

Commissioner should have scope to include the representative group for specific focussed areas of work.

Protected characteristic groups:
-disability;
-race (including citizenship and nationality);
-religion or belief;
-sexual orientation; and transgender identity and,
-will soon include age and variation in sex characteristics, with the option to add sex as a future category.

Age, gender and sex will potentially be added to this group and Refugees & asylum seeker groups should also be considered - future proofing needs to be build in

A human rights approach should be the base framework for all work the Commissioner is undertaking.

Existing gender based violence organisations can be utilised to identify specific groupings of victims and can also provide support to avoid re-traumatisation.

The PANEL principles (Participation, Accountability, Non-Discrimination and Equality, Empowerment and Legality) for engagement for any groups should underpin a human rights based approach.

https://www.google.com/search?q=human+rights+panel&rlz=1C1GCEB_enGB931GB931&oq=human+rights+panel&aqs=chrome..0i512j69i57j0i512j0i22i30l7.7791j0j15&sourceid=chrome&ie=UTF-8

Often collective organisations bring issues/concerns to the forefront. The blend between learned and lived experience is crucial here.

Linking with other national posts such as the Children & Young Peoples' Commissioner for example will be useful. Although independent of each other they should be supportive of each of the remits.

Others such as HM Prison's Inspectorate and the Care Inspectorate will also be key.

There is a legal framework for victims to use already in regard to complaints. This post needs to focus on the system. Individual cases should filter through and inform this process through case studies for instance.

No

This is a fundamental and central way the experiences of complainers can be improved.

Needs to be underpinned by a framework of 'what we will do' - this gives accountability.

Trauma informed principles should be incorporated and embedded across the standards of service and current legislative framework.

Yes for the legal profession specifically, not all of the profession will be aware of trauma informed approaches. Currently largely dependent on the individuals in the Court room. A legislative basis would embed as inherent across practice.

This would ensure that for instance independent legal practitioners took cognisance of / act on trauma informed practice in and beyond the court room - Trauma informed Principles of Choice, Empowerment, Trust, Safety and Collaboration.

Victims and witnesses need to have choice in the way that their evidence is presented and can experience trauma in regard to this - i.e. feeling that they are just part of the evidence chain - victims Rights need to be upheld and delivered.

There should be a duty on courts to ensure victims are not re-traumatised by the 'system' and lack of communication with them/the organisations who are supporting them. For instance, in the case of creating accessibility for victims for whom English is not their first language, this duty could create capacity for translators to be available more quickly; for immunocompromised people it would enable the trial to proceed quickly without them being exposed to courtroom situations that could compromise their health particularly in the pandemic context; and so on.

A Wise Women Consultation with 112 women who experienced 515 types of abuse made comments such as:

"In Court I was shaking and felt sick. I was told to calm down by his lawyer. That did not help, the sheriff didn’t help”

“I was confused. I didn’t want to go over the details of what he did and how he 'disrobed himself' - I felt humiliated all over again. I said I couldn’t remember a particular detail and was made to feel I was making the whole thing up”

"I still have nightmares over going to court”

“Going into the room one of the clerks smiled at me. It’s daft but that helped”

Goes back to the question of choice/empowerment in relation to Trauma Informed and not re-traumatising people.

The option to have this creates a level of accessibility for specific victim groups, for example Domestic Abuse, Hate Crime/anti-disabled hate crime, Sexual Abuse, anti-social behaviour etc. - a focus on the needs of the individual is crucial.

Can be helpful in timing - getting everyone in the one place at the one time, specifically where geography is a barrier.

Would be an inclusion in a trauma informed system - should be an option in all cases where trauma has been incurred for example where actual or threatened interpersonal violence has occurred.

As at Q19 - The option to have this creates a level of accessibility for specific victim groups, for example Domestic Abuse, Hate Crime/anti-disabled hate crime, Sexual Abuse, anti-social behaviour etc. - a focus on the needs of the individual is crucial.

The people (victims & witnesses) own particular circumstances and barriers need to also be considered, for example, the following comments were made in a Wise Women Consultation with 112 women who experienced 515 types of abuse:

Victims with learning impairments / differences

“I have a mild learning difficulty and they asked me if I was sure I was gang raped and not just confused”

Addiction / mental health issues: Heightened anxiety

“I know people judge me because I’m an addict, but I was abused. I know I come across as a nutcase but I get wound up and panic and kick off especially if I’m scared. I know that doesn’t help me, I couldn’t give evidence”

Disability:
“I have cerebral palsy and they asked me if I was drunk”

Educational and Language needs:

“I get confused easy and the language they use goes right over my head. If I’m stressed it’s worse. What would help if I was asked questions on a video link like the ones Deaf People use”

All of these comments highlight that virtual summary trials would help levels of anxiety giving victims a less traumatic experience.

2 women in these scenarios decided not to try for a prosecution as they felt if this was stage 1 of reporting what would the court process be like.

Virtual summary trials if offered from the outset may help survivors to engage with the Criminal Justice process.

For the reasons set out at Q19 & 20

For the trauma victim, choice and empowerment in relation to this option is hugely advantageous.

The safety element for victims where for example the perpetrator is on bail can be an issue. CCTV rooms are available however you are still bringing victims into the same building/space. Arranging back door entry is common practice.

Travel time/cost is another factor can also be an issue as can childcare particularly for female victims.

This would improve accessibility and inclusivity of the process and improve the legal systems' adherence to equalities legislation.

Emotional wellbeing is much less likely to be impacted by frustrations when for example trails do not go ahead at the last minute as is many victim and witnesses' experience. In a Wise Women Consultation with 112 women who experienced 515 types of abuse the following comments were noted:

“I asked if my statement could just be given to the judge and jury. But it was read out with him there, hearing the impact it had on me and my relationship. I felt he was getting off on it.”

“No one wants to sit in a room with the guy that raped them let alone re tell the details in front of him and a room full of bloody strangers”

“I couldn’t cope with folk’s reactions and looks. I knew they thought I let this happen” - This woman stated it affected how she gave her evidence.

Some anecdotal information from services working with women suggest that in the main women are keen to pre-record their evidence rather than face their abuser in court. Women commonly sight being made to recount in front of abuser as a reason for not reporting the crime against them.

Women are often concerned that when they are recounting in court that the perpetrator may be re-aroused when the woman is having to answer intrusive questions.

“I asked if my statement could just be given to the judge and jury. But it was read out with him there, hearing the impact it had on me and my relationship. I felt he was getting off on it.”

Trauma can often distort the memory of specific incidents which can make it difficult to recall during cross-examination in court which can re-traumatise the victim. Through choice and supported pre-recording services can help to lesson the trauma experienced by victims some of whom will have mild to moderate learning impairments and to improve the quality of the evidence they are able to give.

It is crucial to put in place protection for all vulnerable witnesses if you are to truly take a trauma informed approach.

In respect of child and vulnerable witnesses we understand that this decision is solely made by the Fiscal and very seldom involves a collaborative approach with support organisations who may be more aware of people who do not fall under this category but would benefit from this.

To put children in a situation that most adults have extreme difficulty with negates any Trauma informed approach, could create and exacerbate existing trauma. Children or Young people under 16 should not have to physically appear in court.

Any process that improves communication, a trauma approach and reduces anxiety of the unknown should be welcomed.

It would be useful to know how many scheduled go ahead. If the majority or a high proportion do not then this can be particularly traumatising.

Currently there is no trauma informed approach to court scheduling. Citations are sent with an approximate 3 month timescale (i.e. asking if people are available between say 1 Sept - 1 Nov) and changes are often made last minute or on the day of trial with several adjournments before the trial proceeds - witnesses are not given choice.

Women's support service providers experience of working with survivors highlights that they find scheduling erratic, that it doesn’t take a victims social circumstances into consideration i.e. childcare and caring responsibilities, poverty (travel), literacy & access needs etc. and postponements are stressful and frequent. Women generally understand the complexity of these issues but feel most of the Criminal Justice System benefits the accused and not the victim.

Some examples of this around hate crime might include acknowledgement that in some cases asylum seekers have been subject to state violence, so the very act of attending court may be retraumatising, or that attending court could carry with it a risk of being outed if a member of the LGBTQ+ community.

No

Women cited the following as reasons for not engaging with the Criminal Justice System:

Wise Women / Scot Govt Equally Safe consultation with Survivors Report.

85% of 515 Assaults were not reported to Police Scotland citing

• Lack of trust in the system
• Low conviction rates
• Poor sentencing
• Crimes against property / money taken more seriously
• Hostile attitudes & judgements
• Discrimination
• Being blamed
• Treated like the criminal
• Being disbelieved
• Lack of confidentiality
• Having to disclose multiple times
• Little understanding of Trauma
• Made to justify your behaviour
• Recount details in front of abuser
• Corroboration / witnesses required
• Subtly raising previous sexual history
• Poor communication
• Loss of control
• Fear of causing pain to others
• Family & Community pressure
• Fear of being deported
• Previous negative experience
• Abuser was well known & respected

If you want to truly implement a trauma informed practice/approach then the element of choice/empowerment in these cases needs to be present.

If there is a required presence at court then there is the potential for people to experience power imbalance. Anything that provides an additional element of choice then this should be available to people.

We do not feel that we have substantial knowledge on the issues in this section, however do feel that while defence statements serve an important purpose in ensuring fair trials for defendants as is their right, the introduction of a framework wherein victims can access details of these statements in advance, could form part of a trauma-informed approach particularly around issues of memory that can emerge in post-traumatic recall.

Because some reports of sexual offenses can come through Third Party Reporting and therefore the complainer is, in the first instance, not talking to a police officer, we believe this protection has to be made available when an allegation of sexual offence is (officially) made. It should also be made clear that the expectation of protecting this anonymity falls on the person who has taken the complaint i.e. in TPR cases the staff member who has managed the complaint in question.

This is an approach that is consistent with other privacy laws and also honours the important movement to make visible the potential legacy of sexual violence.

This is a matter of personal freedom and other rights to privacy can be set aside at the will of the complainer. Testimonies from survivors of sexual violence can be enormously powerful and have been known to empower other survivors to come forward with their own stories. In cases with multiple complainers the right to identify oneself should be enshrined with the caveat that one must not identify any other party.

In line with the New Zealand model of waiving anonymity officially with application to the court and with the court’s presumption to allow this.

This speaks to the child’s capacity to give informed consent and could impede child safeguarding significantly.

However, we do not think the hypothetical posed in this question should happen.

Consideration should be given to bringing this in line with the age of consent

While the circumstances of these cases are left vague we can neither agree nor disagree with this statement.

We feel this will become a deterrent to reporting as so many reports of sexual offenses do not result in convictions and this could become a threat against potential reporters.

We believe that this is a pragmatic response to the realities of social media’s role in people’s lives

This is in line with a victim centred approach and can mitigate trauma harms.

This is in line with a victim centred approach and can mitigate trauma harms.

This is in line with a victim centred approach and can mitigate trauma harms.

This is in line with a victim centred approach and can mitigate trauma harms.

Barriers to making meaningful reports, particularly of sexual harm should be removed wherever possible, including financial barriers that can disproportionately affect women and vulnerable people.

We do not feel that we have the expertise or understanding to answer this.

We do not feel that we have the expertise or understanding to answer this.

We believe that it is more important to bring the standards of existing court structures up to muster, specifically around the speed of service and provision of trauma informed services for all crimes including hate crimes, as well as specific training around misogyny whether or not the law ultimately enshrines this as a hate crime.

Furthermore this could have an impact on cases where more than one type of harm has taken place, for example in domestic abuse cases where the harm has been both sexual and physical/emotional. This differentiates the sexual harm in a potentially unhelpful way.

The New Zealand pilot offers some strong evidence to suggest that this approach had positive benefits on both system and person centred outcomes, as did the Glasgow Domestic Abuse Court evaluation. In the main, the arguments presented against would appear to be more around presumption and perception - even where there was a potential evidence base against this i.e. the New South Wales example it was:

"...noted by those who carried out the evaluation that there was little to differentiate the pilot court from mainstream courts and problems arose because of the way in which the pilot was set up."

Although we feel this undermines the need for such a distinction

We do not feel that we have the expertise to answer this question.

We do not feel that we have the expertise to answer this question.

We do not feel that we have the expertise to answer this question.

We do not feel that we have the expertise to answer this question.

These crimes should be considered of utmost seriousness.

This is in line with existing Scottish Government ambition and best practice globally.

The provision of trauma informed training to statutory staff such as judges is of enormous importance and this cannot be substantially offered to lay juries. Single judge trials may have a role in addressing the balance between the victim centred approach aspired to by the Scottish Government and the right to a fair trial.

The provision of trauma informed training to statutory staff such as judges is of enormous importance and this cannot be substantially offered to lay juries. Single judge trials may have a role in addressing the balance between the victim centred approach aspired to by the Scottish Government and the right to a fair trial.

Addition of trauma informed case management

The provision of trauma informed training to statutory staff such as judges is of enormous importance and this cannot be substantially offered to lay juries.

ECHR/EIA/Child rights/Fairer Scotland in particular will have considerations around the human rights of those affected by hate crime (protected characteristic communities) to pay particular attention to.

Legislation around this is clear.

Digital trial provision can have a positive impact on environment in urban areas in particular by reducing traffic and energy expended.