Improving victims' experiences of the justice system: consultation

We agree that the independence of the role should be a core tenet, as it needs to be impartial in its scrutiny of authorities and recommendations put forward.

Having the role be statutory would increase its powers to hold relevant authorities to account, and ensure consistency in the role actually being held by someone.

It would be useful to have independent investigations into systemic issues, especially as we see that many victims of sexual offences experience similar problems and facing similar barriers.

The power to require people to give evidence should be for professionals involved in the issues being investigated, but not victims of crime that have been affected (should that be relevant). Being forced to provide evidence could be retraumatising for the victims of crime, particularly ones where loss of agency has been an element of the abuse/crime (I.e. sexual offences, domestic abuse, other forms of gender-based violence).

We believe that direct engagement with victims is fundamental, as it is their voices that the commissioner should champion.

Multiple ways of engaging with victims would be beneficial to avoid barriers to participation and give opportunity to different victims to engage and provide their point of view.

Asking victims how they would best prefer to be engaged with would be good, perhaps as a small open consultation at the commencement of the role.

Engagement through various organisations that work with victims (Women’s Aid, Rape Crisis centres, Victim Support) would be useful as well as it would help preserve anonymity of victims who would consider direct engagement to be a barrier.

Victims of sexual and interpersonal violence offences, as well as victims of GBV, as they face low conviction rates and very low rates of going to trial at all.

Marginalised and minoritised victims, who would be at additional risk of facing barriers to accessing justice or face discrimination by the justice system, e.g.:
Black victims and other victims of colour
LGBTQ+ victims
Refugee and migrant victims
Disabled victims (both physical disabilities and other disabilities)
Victims with experience of sex work

Advisory boards and close collaboration with relevant specialist and by-and-for organisations would be useful for this, as it would allow victims who may feel cautious approaching or engaging with a commissioner role to do so via a third party.

We believe it is crucial that the role of the commissioner happens in addition to the work already undertaken by specialist organisations.

Working with these organisations could provide additional opportunity for feedback from victims, that might be shared informally with workers, as well as identify good practice happening in sectors adjacent to the criminal justice system.

Women’s Aid
Rape Crisis Scotland
Scottish Refugee Council
National Ugly Mugs
Shakti Women’s Aid
Scottish Commission for People with Learning Disabilities
Scottish Women’s Rights Centre
Victim Support Scotland
People First (Scotland)
Engender
Equality Network
Wellbeing Scotland
Scottish Trans Alliance

Our main concern is capacity, as it seems the role could potentially become too large if it also includes this power.

A Victims’ Commissioner should be complementary to the work of existing specialist organisations, such as Rape Crisis Scotland and local centres in the Rape Crisis network.

Currently, many survivors express that going through court is equally traumatic to their experiences of sexual violence and they are frequently re-traumatised. This is unacceptable.
We strongly agree that there should be a specific legal reference to trauma-informed practice for this reason. We also believe it would make it easier to hold practitioners in the criminal justice system to account, as there would be specific guidance.

We believe that a permanent introduction of virtual trials would be beneficial to reduce the traumatising impact that the court environment often has on victims, especially in cases involving sexual offences and domestic violence offences.

Cases that have involved elements of sexual or domestic abuse, even where they may have ended up in summary trials due to these charges being dropped following the initial report to police (e.g. due to a lack of evidence).

Stalking cases

Harassment cases

We believe it should be a presumed standard for the reasons given above, namely because we know appearing in court is often traumatising for survivors of domestic abuse.

We also support the statement that it could help work through the backlog of cases, a problem which causes further distress and uncertainty to many survivors.

It offers additional benefits, as victim-survivors are not running risk of encountering the accused or people close to the accused when attending court.

It also avoids or mitigates the fear of people seeing them going to court; this is a particular concern is smaller communities where people know each other more and may be able to puzzle together what has happened based on reports or seeing someone outside the court building.

We believe that the right to pre-record evidence should be enshrined in law, as we frequently hear that victim-survivors of sexual violence find it traumatising to appear in court to give evidence live.

The scheduling of sexual offences trials as floating trials should be stopped, as this frequently adds distress to survivors. A new approach to scheduling where the predictability of court dates and dates for giving evidence would be strongly encouraged. We believe this should be developed as part of a new sexual offences court, as detailed in other parts of this consultation.

The right to pre-record evidence should be enshrined in law, as many survivors find it retraumatising and distressing to appear live to give evidence.

Personal cross-examination can force victim-survivors to be directly addressed by their abuser, creating situations where abuse can continue into the court room.

We agree with the briefing from Rape Crisis Scotland, which states that other protections which are standard in criminal proceedings for vulnerable witnesses,
such as the use of special measures for giving evidence in court, should be extended to
civil proceedings. Civil proceedings may be an avenue for justice where criminal justice fails, and the need for protection from re-traumatisation is equally important.

Sexual offence complainers should be deemed vulnerable by the nature of the crime and should not have to led evidence to prove they require them.

No

We support the call from Rape Crisis Scotland, for there to be a requirement that defence statements outline detail of the accused position to allow for judicial oversight and scrutiny of the topics of cross examination and in order to allow the crown to convey the general defence to the complainer where this is permitted

Victim-survivors often make disclosures to others before they speak with police, and we would want the right to anonymity to cover any potential period that lies before a disclosure to police.

We believe any other cases involving significant sexual elements should also be covered by this provision even if it is not covered by the above mentioned laws.

Victim-survivors should have ownership of their experiences, and as such should not need court approval to speak about their experiences without being anonymous. If done via a third party or media outlet, consent to waiver anonymity should be done in writing and with ample time to consider the consequences of doing so.

Victim-survivors should have ownership of their experiences, and as such should not need court approval to speak about their experiences without being anonymous. If done via a third party or media outlet, consent to waiver anonymity should be done in writing and with ample time to consider the consequences of doing so.

Due to the additional vulnerability of young complainers, they should have additional support and protections in place. Support should be offered to ensure there has been no pressure placed on the young person/child to waiver anonymity and that they have access to independent advocacy and support, as their perspectives might differ from that of parents and guardians.

Need to ensure compliance with the UN convention on the rights of the child. Possibly consider it in line with Gillick competence, minimum age 12, and ensure there are robust assessments to ensure any child waiving their anonymity has not been pressured into it and furthermore that they are fully able to understand the potential lifelong consequences. Children’s perspectives may differ from that of their parents/guardians and they may require independent advocacy and support in this.

Also need to accept that some people, especially young people, may breach their own anonymity without really considering or realising I.e. it’s incredibly common for people to speak on social media, blogs and podcasts about their lived experience. This should not be punishable.

Anonymity should not be set aside by the court for the purposes of securing defence
evidence, nor should it be set aside if the survivor withdraws from proceedings or there
is a not guilty/proven verdict.

We strongly disagree that the right to anonymity should expire upon conviction of the complainer for offence against public justice, as the complainer may still be vulnerable and at risk of harm should their status as a survivor of sexual violence be revealed.

There are situations where circumstances could lead to a complainer being charged or convicted for crimes against public justice that are directly linked to their experience of GBV. E.g. a victim-survivor may be pressured, directly or indirectly, to take back a report by claiming they made up the original allegations and then be charged with wasting police time.

Furthermore, removing the right to anonymity in such cases would also feed into narratives around ‘perfect victims’ and legitimise the idea that some victim-survivors have a greater right to safety than others.

We are also concerned with public perceptions of survivors relating to media reporting around such cases, as there is already a common misconception around false reporting being more common in sexual offences than other crimes. Thus, potential reporting around victim-survivors who have been found guilty of a crime against public justice could have a knock-on effect on all victim-survivors.

Fines should be proportionate in order to be a deterrent – if a large publication breaches someone’s anonymity, then the fine should be large enough to be a real deterrent, £10,000 is not significant enough to discourage certain publications from flagrantly disregarding the law. Equally a defendant who is of considerable means could happily accept such a fine and still achieve their ends. If other specific harm occurs as a result of the breach of anonymity that would likely come under existing legislation and could be prosecuted and potentially result in a custodial sentence. The fine should primarily deter and prevent breaches, however in terms of a punitive measure imprisonment is a significant cost to society whereas fines could be reinvested in improving services – so it makes sense from a practical perspective.

Guidance for news publications would also be welcome, as they should not push for victim-survivors to waive anonymity.

This type of evidence is particularly distressing for most complainers, and as such they should have legal support to challenge such applications. Going further than this, complainers in sexual offences cases should be entitled to legal advice and representation throughout the criminal justice process.

We believe it should be funded by legal aid, as the right to dignity and appropriate legal representation should not need to be funded by someone who has already been subjected to a crime, regardless of their financial situation.

In our experience, survivors often feel rushed and under immense time pressure when a s275 application is made and have not had sufficient time to consider what this means for their case or how it will affect them to have these things come up in court. More time would better prepare them for court and hopefully minimise the re-traumatisation of such questioning being brought up during the trial.

Sexual offences stand out from other crimes in terms of conviction and prosecution rates, clearly indicating that the current courts are not suited for dealing with this type of charges as they currently stand.

Among other things, myths around false allegations etc are much more common than for other crimes., which means that specialist training would be needed to make sure these do not affect outcomes and treatment of victims and other witnesses.

Power dynamics inherent in GBV cases may be ongoing in court itself; specialist training is needed to be aware of this.

Having it sit separately would allow more a purposeful trauma-informed structure, particularly as the other courts will not have been built around these principles.

This would increase efficiency and avoid victim-survivors having to appear in court multiple times for separate charges.

We believe a sentencing maximum would downgrade sexual crimes from where they currently sit. We also believe it could lead to capacity issues if they needed to be referred.

Having both judges and sheriffs who have passed relevant training would increase capacity for a specialist court, which is why we support this suggestion. However, people may associate judges with cases of higher legal severity, and as such sheriffs presiding over the specialist court should be made temporary judges to avoid speculation as to why certain cases would be heard by a judge vs a sheriff.

Understanding the impact of trauma, how different people respond to traumatic events; there is no one typical trauma response.

Training for court officers and witness supporters on how to support survivors in empowering ways, that works to actively mitigate retraumatisation. E.g. Understanding how court dynamics may mimic those in GBV situations.

We support the key elements of the specialist court outlined in the report from Lady
Dorrian’s Review:
1. pre-recording of the evidence of all complainers
2. judicial case management, including ground rules hearings for any evidence to be
taken from a complainer, either on commission or in court
3. specialist trauma-informed training for all personnel
In addition, we believe that the court should feature:
- Dedicated advocacy and court support provided by Rape Crisis advocacy workers
- A totally new approach to the scheduling of trials which avoids floating trial diets
- Separate entrances and waiting areas for survivor and family
- A protected area where the survivor and their family can watch proceedings

As research has found, juries frequently believe myths around sexual violence and consent, and may have a poor understanding of legal processes. It is clear to us that the current system does not work.

Moreover, we have heard from survivors about the distress and trauma of being humiliated in front of a jury during cross-examination, as they felt defence played on myths around GBV or their character history to win the jury; this would most likely be less common if speaking to a judge only.

Panel of judges would be preferable, but a single judge trial would be more suitable than jury-based trials and cause less issues around capacity.

A judge could also provide a reason for the verdict given, which a jury is unable to do. This could provide clarity and closure for complainers, particularly once that have resulted in acquittals.

Potentially an increase in appeals, if defendants found it unfair to not have been tried by a jury.

For increase of appeals: Having a second-opinion judge as part a jury-less trial system. This could create a capacity issue, however.

One worry about a pilot could be experiences of victim-survivors who may feel they were disadvantaged by having their case heard in an untested system. Allowing victim-survivors to opt into the pilot would be important to allow a sense of agency in this process.

From the point of view of survivors, the system we have right now is not working. Even if there are potential issues with single-judge trials, an attempt to try something new would be welcome as there are no viable suggestions for how we could improve the issues relating to a jury-based system (i.e. lack of knowledge of legal proceedings, belief in rape myths etc). Attempting to fix these issues would come with a lot of additional problems as well, so trying something new would be more beneficial and practical.

Panel of judges would probably alleviate some worries people might have about single-judge trials, e.g. bias of just one person making the decision.