Justice 1 Committee, 27 Mar 2001

Meeting date: Tuesday, March 27, 2001

Official Report 323KB pdf

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Legal Aid Inquiry

Agenda item 2 concerns our legal aid inquiry. Our first witnesses today are from Victim Support Scotland: David McKenna is the director and Rosemary Lester is the services manager. You may make a short opening statement. Please make it very short, because we have a lot on today.

Good morning. Victim Support Scotland very much welcomes the opportunity to contribute to the Justice 1 Committee's review of legal aid. This is an important opportunity to address some of the outstanding issues concerning access to justice for the communities in Scotland. I will touch briefly on some of the points in our written submission.

We are concerned that victims of crime get access to appropriate advice, assistance and representation in all legal matters. Specifically, we are concerned that victims get access to compensation for criminal injuries and that they have access to civil remedies when domestic issues arise or when they have problems with anti-social neighbours.

We believe that it is important that the Executive and the Parliament monitor the introduction of the fixed-fees system in relation to legal aid. We have concerns that the system might impact on the way in which victims are treated in Scotland.

That is all that I want to say at this point. I am happy to answer questions.

Perhaps I can pick up on your final point. You suggest that victims of certain crimes, such as sexual assault and rape, suffer as a result of the fixed-fees system. Can you explain why that is? Is it simply because there is less likelihood that precognitions will be taken and there will therefore be more cross-examination?

Our concern about fixed fees does not relate specifically to rape and sexual assault victims, but to victims of crime more generally. It is early days yet to be getting feedback on the workings of the fixed-fees system. However, since the introduction of fixed fees, we have had a general concern that the system might impact on victims of crime, because accused persons may, increasingly, undertake for themselves the precognition of witnesses and victims.

Have you any evidence of that?

It is too early for that. We are saying that it is important that the fixed-fees system is monitored and evaluated to see what impact it is having on victims of crime.

How often will rape cases be heard in summary courts and therefore be subject to a fixed fee?

Our concern about fixed fees does not relate directly to rape and sexual assault cases. We have no evidence that victims of rape and sexual assault are being precognosced by accused persons as a result of the fixed-fees system.

So, you have no evidence that there is a problem.

In relation to rape and sexual assault victims, we have no evidence that there is a problem. If there is an issue at all, it is with the right of the accused person to precognosce witnesses and victims directly. That is a wider concern that does not relate only to legal aid.

In your written evidence, you call for an independent review of the declining proportion of persons who, having been granted legal aid, take up the offer. I understand from other evidence that has been submitted that the Scottish Legal Aid Board has commissioned a research project on that specific topic. Are you satisfied with that?

That is an important step forward. We also welcome the establishment of the Executive's working group on access to justice in the community, and we look forward to the publication of its recommendations.

We are satisfied with that, but we obviously have concerns. For example, we have direct evidence from our own local services of individuals who feel unable to proceed with an action for interdict because of the contribution that they would have to pay. For a single parent with a part-time job, the contribution level required for representation is significant, so that such people may feel that they are unable to access the right to proceed because they cannot afford the contribution. We remain concerned about the level at which contributions are paid.

What do you think we should do to drive the trend? Do you believe, for example, that victims of abuse should be treated differently from other categories of victims when it comes to legal aid?

Broadly speaking, we believe that victims of crime should have a special status in the legal aid system in Scotland. If victims of violence are entitled to criminal injuries compensation, the state should assist them with their application. That assistance should include not only advice and assistance, but also representation. Where women—it is particularly women—are suffering harassment, intimidation, threats and violence and are looking to use interdict, we believe that that should be fully funded by the state to protect those victims.

You say that someone who is a victim of abuse, violence or other forms of anti-social behaviour should be funded fully through the legal aid system. If such a victim has quite substantial financial means to pay their legal costs, should they get priority over someone on a lower income who may be in a different category?

Questions about priorities are always difficult, as are questions about budgets and available resources. I am not sure that I would feel happy about saying which group of potential applicants should receive lower priority, but I certainly believe that the legal aid system in Scotland is doing a disservice to women victims of violence and that that must be addressed. How we pay for that is probably a matter more for the Parliament and the Executive than for me.

So, regardless of someone's financial means, do you believe that their application should be fully funded by the state if it falls into one of those categories?

Definitely.

So even a millionaire who is experiencing difficulties with an anti-social neighbour could—

I understand that it could mean that, on occasion, an applicant who has substantial resources could get free legal aid. However, the vast majority of people who are suffering from violence come from poor households and from communities that suffer from severe social exclusion. It is in the interests of the vast majority of people, who have difficulty in accessing that kind of civil remedy, that we support them by funding it.

Are you suggesting that the majority of such victims are people who would qualify for legal aid anyway?

The issue is wider than simply qualifying or not qualifying for legal aid; it concerns the message that we send out to women in Scotland about what help and support is available to them in the aftermath of violence, harassment and intimidation. What we are saying, quite straightforwardly, is that women who find themselves in those circumstances and have to go to the civil law for remedy should get funding for legal support.

A wider issue that impinges on that matter is the fact that we are increasingly using the civil law to address issues that should, ideally, be resolved by the criminal law. However, it can be difficult to prove instances of harassment and intimidation in criminal law, so the next best thing is a civil remedy. If victims are to use those kinds of civil remedies in those types of cases, we believe that they should be fully funded.

I wonder how tightly you are defining what you call "those types of cases". Would it apply to men who are assaulted or beaten up? Would it apply to neighbourhood disputes? How far do you go? There can be a fine line between one kind of dispute and another.

Obviously, there is always a question of degree. Our view would be that, whatever the degree, support to access civil remedies should be available to all people who are seeking to protect themselves. Where there is a risk of violence—whether psychological or physical, whether to a man or a woman—we should fund assistance to ensure that civil remedies can be sought.

I am just worried that that could be a bit hard to define. In the current system, whatever you may say about its defects, if someone has a case but not the requisite income, they are entitled to support regardless of the case. That is fairly clear cut, but you may be muddying the waters somewhat.

Victim Support Scotland's position is more moral than legal. We simply believe that it is the duty of the state to protect its citizens. The use of civil remedies is one way in which the state can protect its citizens, so it should provide the funding by which citizens can get access to that protection.

Do you have evidence of significant numbers of people being deprived of that protection because they do not qualify for legal aid?

Rosemary Lester has done some research over the past week or two with local Victim Support services, so she may want to comment.

Women who come to Victim Support for practical and emotional support often tell us that, irrespective of whether they meet the legal aid eligibility requirements, they cannot afford to make a contribution and therefore do not take action.

You asked whether the numbers are significant. The evidence from victim support services over the past year is that they are not. Irrespective of the numbers, the individuals concerned were affected significantly because they were unable to apply for what they perceive to be a level of protection for themselves. We are not talking about vast numbers, but making legal aid available to those individuals would mean quite a lot to them.

We will move on to questions about compensation.

On the Criminal Injuries Compensation Authority, your written evidence suggests that many victims of serious crime in Scotland fail to apply for compensation, for fear that the related costs might be high. What evidence do you have to support that assertion?

I will give some background information first. About £11 million is spent in Scotland every year on criminal injuries compensation for victims of violent crime, which is substantially less than the amount spent on defence precognition in Scotland. The levels of compensation that are given to victims of violent crime have fallen over the past five years from a high of about £20 million in 1995-96 down to approximately £11 million.

The average number of applications submitted in Scotland to the CICA each year is 5,000, of which about 20 per cent are refused at the first stage. About 10 per cent of the 5,000 total subsequently require to be appealed to the Criminal Injuries Compensation Appeals Panel.

Although victims of crime are able, in theory and sometimes in practice, to avail themselves of legal aid for advice and assistance, legal aid does not extend to representation at the CICAP. The guidance notes that we issue to volunteers on working with the CICAP are about 550 pages long. It is not easy for individuals to represent themselves at an appeals panel.

The costs to an individual of employing someone to represent them can be prohibitive and often discourage victims of violent crime from making an application to appeal CICA decisions. It is a sad fact that, in Scotland, when a victim of rape sees someone arrested, charged, prosecuted and found not guilty of that crime, it is almost automatic that the CICA will reject their claim simply because someone was found not guilty at trial. In almost all such cases, the rape victim is required to appeal to the CICAP.

Our view is that the purpose of legal aid, which was established 50 years ago, was to allow people access to justice. The purpose of the compensation scheme was to recognise the state's responsibility to protect people and to provide some compensation when it failed to protect them. There is a third element: the state must also provide the means through which people can access that compensation.

A number of questions arise from that answer.

Carry on, Phil. That is what we are here for.

I will stick to the script for the moment.

Do you think that the number of applications to the CICA would rise if civil legal aid were made available to support claims for compensation? What difference would means testing make? What priority would you give to that proposal, as opposed to the proposal to make civil legal aid, without means testing, available to victims of abuse?

I will try to remember all those questions.

One of the issues about the number of applications that are made in Scotland to the CICA is that little public information about criminal injuries compensation is available, so many victims do not learn about the existence of the scheme. That is a major factor.

In 1985, the first report of the Home Affairs Select Committee stated that only one in four victims of violence in Great Britain accessed the criminal injuries compensation scheme. Recent figures from CICA suggest that it believes that that figure is now one in three. However, our experience suggests that one in six of those victims of violent crime who may be eligible for compensation access that compensation.

I am not sure whether I can answer the question about where the funding of legal aid for criminal injuries compensation applicants falls in relation to other priorities, such as civil remedies. However, I do not necessarily mean that only the Scottish Legal Aid Board can provide the advice, assistance and representation that victims require, whether for civil remedies or for criminal injuries compensation applications. It is possible to find other ways of funding community organisations to provide those services. I noted with interest that, 14 days ago, the Home Secretary announced a grant to Victim Support in England and Wales of £6 million to allow it to develop its work with victims of crime on criminal injuries compensation applications.

You suggested that only about one in six of those who suffer criminal injuries through serious assault is entitled to compensation.

Our experience suggests that about one in six of those victims of crime who could be, or are likely to be, entitled to compensation as a result of a crime of violence gets access to compensation.

I am tempted to ask the questions that came into my mind about the rules for criminal injuries compensation. I find it remarkable that only about one in six victims of crime is entitled—

They are entitled to compensation but they do not apply for it.

Does that suggest that the CICA rules are too strict and that people balk at them?

There are two issues. The first is the lack of public awareness of the scheme's existence and the second is that people find it difficult to gain access to advice and assistance in relation to the application process. Many victims are dissuaded from applying because of the potentially high legal fees. The minimum award from the CICA is £1,000—for example, a broken nose that was sustained in an assault might attract compensation of about £1,000. However, the legal fees involved in pursuing such a claim could come to £1,200.

The issues are quite complex and our hearts go out to victims of crime, such as young children, families of murder victims and victims of rape and sexual assault, who want to continue their claims but cannot, because they cannot afford to do so.

I am trying to get from you why you think that there is a need for legal representation for compensation claims, the formula for which is that someone is found guilty in court, with no blame attached to their victim, who may have suffered an assault. Why should an individual require legal aid to pursue a claim for compensation for a broken nose?

The new scheme, which came into effect in April 1996, simplified the application process to an extent. The formula that you described is accurate. However, when the characteristics of an application deviate from that framework, victims run into difficulties. They must demonstrate certain aspects of their claim to the CICA.

For example, Mr Gallie, let us suppose that you are a victim of rape, but the evidence that was led in court and the case that was prosecuted was based on sexual assault. The CICA might compensate you for the sexual assault, but not for the rape. However, you know that you were raped and you must then demonstrate that you should be compensated for rape as opposed to sexual assault; you must argue and win that case. That also happens with claims for post-traumatic stress disorder, in which victims must demonstrate the degree of post-traumatic stress disorder that they have suffered, as the amount of compensation available depends on that.

It is interesting to note from the CICA's report for 1999 that only one applicant in Scotland received an award of more than £40,000, although the authority can make awards of up to £250,000. Despite all the crime and the horrifying details that are published in our media every day of the week, no victim in Scotland was given more than £40,000.

Victims must be able to demonstrate the degree to which they have suffered, which often involves obtaining medical and specialist reports, and getting legal advice and assistance or representation at the CICAP. No matter how informal the appeals panel is, the ordinary man or woman the street is not able to represent themselves effectively in such complex cases.

Do you think that there is a case for victims to be given legal representation, whether through legal aid or whatever, in criminal cases? At present, the procurator fiscal is responsible for looking after the victim's interests. However, the procurator is there to get a conviction and he may not look after the victim's interests.

There is a growing feeling among victim organisations in Scotland and the United Kingdom that, although victims have no role in the courts at present, they must be given a role, whether through legal representation or becoming a party, with the prosecution, to the proceedings. I am not sure, but I think that the term for such a role is partie civile.

The Macpherson report proposed that the Government should consider allowing the victim—or co-victim in murder cases—to be party to the proceedings and to sit with the prosecution during the conduct of the trial, as that would enable the victim to give information to the prosecution as the trial proceeds. There is a case for considering how the victim could be more involved in the justice process, without unbalancing the equality and fairness of that process. The Macpherson proposal may be the way forward, in which case we would expect the victim to receive legal aid.

I must first declare an interest. My husband is a solicitor who deals with legal aid cases.

What are your views on how a community legal service should develop? You welcome the establishment of the working group that will develop proposals on a community legal service in Scotland, but have you had any input into those proposals?

We would have welcomed an opportunity to take part in the working group and to present the views that we have presented this morning. However, we are not represented on the working group.

If a community legal service were established, would there be a role for Victim Support? An idea that has been floated is that organisations such as Victim Support could have a role as a provider of advice and assistance to clients, perhaps even taking cases as far as court appearances. How would you feel about representing people at the CICAP, for example?

Victim Support believes that victims should have choice and should be able to go to a solicitor or a citizens advice bureau.

Victim Support already provides support to people who apply for criminal injuries compensation. Last year, around 1,000 people in Scotland received help, from form filling right through to support at the CICAP. We had some level of involvement in about 20 per cent of all applications for criminal injuries compensation.

There is an unmet need for advice, assistance and representation for such claims and, since Victim Support's inception in 1985, the organisation has developed a lot of knowledge and skills in its work with the former Criminal Injuries Compensation Board and with the CICA. Our knowledge allows us to assist victims when they come to us for help. We have no problem with that, apart from the fact that providing that service takes a lot of resources from the organisation. We estimate that that work takes up £150,000 to £200,000-worth of our resources. If we were to expand that work, we would require additional resources.

If the new community legal service were to incorporate voluntary organisations, would you like to be part of that service?

We look forward to hearing what the proposals will contain. We are aware that SLAB is bringing in opportunities for solicitors to be employed across a range of organisations under part V of the Legal Aid (Scotland) Act 1986. We are interested in exploring that with the board at an appropriate time.

As there are no further questions from members, I thank the witnesses for their help this morning.

The Deputy Minister for Justice will not be here until 10 o'clock, so I propose to deal with items 5, 6 and 7 on the agenda now.

Before we do that, and while we are still discussing legal aid, an e-mail from Duncan Shields has been circulated. It contained the reasonable suggestion that we should involve the Scottish family mediation services in this inquiry. Would that be possible? Could we take evidence from the service?

We could certainly ask the service for written evidence and then decide whether we wanted to take oral evidence as well. That will not be a problem.

Thank you, convener.