Victim Statements (Prescribed Courts) (Scotland) Order 2009 (Draft)
The committee re-enters public session to deal with agenda item 6, which is consideration of subordinate legislation: the draft Victim Statements (Prescribed Courts) (Scotland) Order 2009, which is subject to the affirmative procedure.
Thank you, convener. It may be helpful if I begin by explaining how victim statements work, and give the background to their introduction.
I am grateful to the cabinet secretary for his statement. I just want to clarify how all this fits together and want to deal first with the position after a plea of guilty or a finding of guilt. The document, "Making a Victim Statement" says that the victim statement
No. If there was a particular problem with disclosure, the statement would have been sifted out by the Crown before that stage. At the imposition of the sentence, the procurator fiscal will hand up a schedule of previous convictions and will, in due course, also hand up a victim statement, if that is appropriate. That process will be formalised. The statement will be part of the Crown's body of papers, along with the schedule of previous convictions, if that applies. On disclosure, in any situation where the statement would have been inappropriate for whatever reason, I presume that it would be sifted out. Such situations would be few and far between. We hope to have a holistic approach, in which the statement is ingathered and is with the Crown. At the conclusion of the case, the Crown will put forward matters of relevance to the court—any previous convictions and the view of the victim, which has been ingathered.
At that stage, would the defence always get a copy of the statement?
Yes, the defence would get a copy, just as it would get a copy of the schedule of previous convictions.
Would that happen only after a plea of guilty, in the normal way?
Absolutely—because it would be prejudicial to put it before the presiding judge or sheriff before such time as there had been a conviction. As with the schedule of previous convictions, the statement could not go before the bench before a conviction. That trigger is necessary.
I just want to be clear about this. Page 4 of "Making a Victim Statement" states:
The only circumstances I can think of in which it would be inappropriate to give the statement to the bench would relate to disclosure. Matters might have to be discussed briefly in the margins with the defence, because of something that had arisen. There is some flexibility in that. In the main, the statement will come to the attention of the court only following a conviction. When the accused is acquitted, the victim statement will be superfluous and will not be handed anywhere. There might be issues with disclosure, which is why the Crown has to check such matters. Clearly, we want to try to minimise the difficulties that go with running the court for all those involved, and the difficulties for witnesses in particular, which is why we seek to have statements as part of the process.
I follow that, but I am trying to be clear about what goes to whom, and when. You seem to be saying that, except in exceptional circumstances, the court would not see the victim statement until after arriving at a guilty verdict.
The court would not see it until such time as a sheriff or judge had made a finding of guilt. At that stage, as Robert Brown will know from experience, the fiscal or advocate depute will jump up to produce a schedule of previous convictions; they will, in due course, be able to produce a victim statement, if one has been submitted.
I will correct you slightly there. The jury makes the finding of guilt. We are talking about solemn matters.
That is quite correct.
In that case, why does it say on page 3 of "Making a Victim Statement" that
If the statement came up through disclosure, that would bring it to the defence's attention, and there could then be an element of questioning. The only circumstances in which we could imagine that happening would be something exculpatory or which might raise questions, but such situations are few and far between. In the main, the victim statement is more likely to relate to the consequences than to the incident, and the court would not go there. However, there could be instances when something might be in the victim statement that could be subject to disclosure.
I have a final point. Page 3 of "Making a Victim Statement" also states:
That is a valid point that I am more than happy to raise with the Crown. We are trying to build up incrementally ways of providing information to those who give evidence in court in solemn trials. It is my experience that procurators fiscal make a great deal of effort, especially where the complainer is likely to give evidence, so we must ensure that the information sheets that are available to witnesses—especially victims—are adequate. Given the nature of the defence in a case in which there has been loss of life, or in which someone has been the victim of a sexual offence, a meeting with the fiscal depute would, in the majority of such cases, take place in the well of the court, so the victim who is coming to give evidence must be aware of the nature of the territory into which they are going. We can certainly undertake to speak to the Crown to make sure that there is no misunderstanding, and so that people realise that the statement is not an alternative to giving evidence, but an opportunity to make the judge aware of what the offence has done to the victim and how they and their family have been affected by the consequences of the action.
It might be preferable if that was sorted out at the precognition stage rather than in court. That would be much tidier.
Absolutely. When we are dealing with solemn cases, it is my experience that there will be a precognition, especially in more complex cases such as sexual offences, but usually some sort of meeting takes place in court to allow people to understand the bear pit that they are going into, especially if they are not used to criminal court procedures.
The third sentence on page 9 of "Making a Victim Statement", under the heading "What sort of information should not be included?", says:
That is because separate statements can be made on behalf of children under the age of 14 by their carer, who could be the woman who was attacked or someone else. It is a question of allowing people who have been affected by a crime to be heard individually, so to speak.
Is it therefore the case that a woman who had children and who was violently attacked by her partner, for example, could make a statements on her own behalf and, if she was the children's carer, on their behalf? Rather than being part of her statement, they would be separate statements.
That would be the position if the children were mentioned in the complaint.
Would that be the case only if the children were victims in the sense that they were part of the offence—if they had been attacked in some way? In other words, the impact on the children of the attack on the mother could not be included in her victim statement.
The children would have to be part of the libel.
Why is that the case? Much of the work that has been done on violence against women is about the impact on children. I would have thought that, as well as the impact on the woman, the impact on the children, which can be quite severe and long lasting, would be relevant information for a victim statement.
I accept that, but the logic behind the proposal—which applies to the laws of evidence and to what can be led as evidence and what is tangential—is that it is meant to be the victim's statement. Clearly, the victim is the person who is described in the libel. I accept that there are consequences and knock-on effects for others, but one must draw a line somewhere when it comes to how far the causal link goes. Under our proposal, the individual or individuals who are identified as victims in the complaint or libel will have the opportunity to make victim statements.
In the example that Stewart Maxwell gave, in which a woman was seriously assaulted in the presence of her child or children, surely it would be perfectly appropriate for the victim to say in her victim statement that the assault had impacted heavily on her because her children had been upset by it.
Absolutely. That seems to be the logical way in which victim statements would operate. If the children were mentioned as victims in the libel, they too could make statements, but you are quite correct to say that the victim could indicate that the crime had affected her ability to deal with her children or her relationship with them. It is not simply a matter of phraseology; it is a question of how far the causal link can go. There would be difficulties in drawing the line. As I said, we face the same issue in a variety of situations that relate to the rules of evidence.
I accept the logic of what you say. You say that it is question of where one draws the line, but my problem is that, in the example that I gave, a victim's children are extremely closely involved. We are not talking about a second cousin or the people next door. We are talking about children in front of whom one partner in a relationship has physically assaulted the other, perhaps very violently. The children are directly involved. I would have thought that it would be reasonable to allow a woman to describe the impact on her children, which can often be traumatic and long lasting, in the sense that they might be unable to carry on at school and their exam performance could be affected, as could their ability to have relationships with other members of the family and, perhaps, with the opposite sex.
I accept the logic of your position. The problem is that that takes us into the realm of hearsay. It is a fundamental aspect of the law of evidence in Scotland that we do not have hearsay evidence. If such evidence were to be led, it would be led from the primary witness—the child. The primary evidence in a victim statement must come from the victim. That is the difficulty that we face. It is the individuals who have been affected by an offence, not others, who should describe the effect that it has had on them. Otherwise, we would be dealing with hearsay evidence, not best evidence.
I am not trying to be difficult. I am interested in such situations because of my recent experience as a minister who was responsible for this area of policy. I am slightly concerned, because the victim statement is not evidence. As you described earlier in response to Robert Brown's question, the victim statement is considered post the guilty verdict. I am not sure that I understand how it would impact on the evidence.
In a court of law, we have to have some cognisance of the clear rules, and we also have to recognise that, ultimately, we do not want to get into a situation where matters are challenged. We can consider how wide we can go, but there have to be clear rules when we move from a victim's comments on what has happened to them—as in the victim statement—to their comments on what has happened to someone else. It is for either that individual or their carer to comment on that.
Okay. Thank you.
Cabinet secretary, I note from the bottom of page 4 of the booklet "Making a Victim Statement" that victim statements
I have a great deal of sympathy with what you are trying to achieve. In relation to the Parole Board for Scotland, the view of the victim is clearly fundamental. There are two points here. First, the victim is told, "Your victim statement will go to the presiding judge or sheriff for them to decide upon." In that sense, it is focused. The victim is told clearly the purpose of the statement. Secondly, the statement must be viewed as a snapshot of a particular time—it gives the victim's perceptions at a particular stage. That might not be their perspective by the time that the statement goes to the Parole Board.
I appreciate that a victim statement is a snapshot of a particular time, but so is an offence. Part of the work that is done with offenders is about what they have done in the past.
I do not know, but I am happy to check that out. We certainly have the victim notification scheme in Scotland. We have to view what we are discussing in the round, and not in the context of one specific matter. Victim statements are one specific way in which to deal with the rights of victims.
I understand that if the victim has died, the relative who is eligible to make a victim statement can be only a spouse, cohabitee, son, daughter, father or mother. Is that not unduly restrictive? If the victim was not in a relationship, their parents were dead and they had no children, it could be argued that their siblings should be eligible to make a victim statement.
Point (e) on page 9 of the booklet lists "Brother or sister". The list is quite wide. We are more than happy to consider, in due course, whether people are not being dealt with. To some extent, the list is based on what already happens in the judicial system, for example in representation at fatal accident inquires. We have recognised that people cohabit—they do not necessarily have to be formally married or in a civil partnership. The list goes up, down and along; for example, nephews and nieces are listed. The vast majority of family relationships are covered.
On page 9, the booklet says:
It is the first four available relatives. Without meaning to be flippant, it would be in descending order.
At the risk of embarrassing myself, I suggest that it could be written a bit more clearly.
We would be happy to consider how we make the information available.
I do not think that Ms Constance should apologise, because I, too, found the wording misleading.
In respect of the quality of the victim statements, it must be recognised that there will be some victims who are able to make a sophisticated written statement, and others—no disrespect intended—who are not in a position to submit that kind of statement. What support is provided to ensure that victims are given the opportunity to make a sophisticated statement? The document talks about a victim being physically unable to complete a victim statement. What is meant by that?
You are right—victims come in all shapes and sizes, and with all kinds of educational attainments and health or other difficulties. That is why Victim Support Scotland has undertaken to assist in this matter. If someone feels confident and wishes to press on, they can. However, Victim Support Scotland will work with anyone who has difficulties and does not feel capable of articulating.
Did the pilot experience confirm that a less sophisticated submission is not taken any less seriously than one that is more sophisticated?
That was not capable of being evaluated. I do not know whether the bench was privy to such matters and we cannot look behind the sentence that was given. Beyond ensuring that those who have difficulties are able to express their views, it is a matter for the bench as to how it interprets a submission.
It is obvious that the evidence that the judiciary receive from the defence and prosecution is usually of high quality, and that they expect statements to be of that quality. Sometimes the statements can be dealt with forensically. I wanted an assurance that, if someone is not in a position to make such a submission, Victim Support will support them—I am happy with that response.
Following the publication of the pilot evaluation, did you consult Victim Support Scotland to learn about—and perhaps influence—the expansion and how the administration would work?
A working group, which included Victim Support and other organisations, oversaw all that. Victim Support has been involved in bringing the matter through from the pilot to the Scottish statutory instrument that is before us.
Most of my questions, like those of other members, are on the wee publication, "Making a Victim Statement". Who was responsible for drawing it up? Was it the victim statement steering group, or was it the Crown Office?
It was the Government, with input from stakeholders, so we are happy to take on board any views on it.
With respect to whoever wrote the booklet, it is confusing—as is shown by the questions that have been asked. It is written quite clumsily in parts and is open to different interpretations. I could make a lot of points about that.
We are more than happy to take that on board. We will, to some extent, sit down with VSS to work it out, because VSS is instrumental and we have been engaging with it. Governments north and south of the border are conscious that inappropriate language is sometimes used. We will happily reflect on that and ensure that we do what we can to get the balance right between providing the information and doing so in such a way that everybody can understand.
That would be good. With regard to Stewart Maxwell's point about what sort of information a victim statement may include, I, too, am concerned that a statement may not include information on how a child has been affected, particularly in relation to domestic violence, which affects not only the victim—the woman or the man—but the whole household. I ask you to have a look at that. You said that it might be sub judice.
No. As I said, there are problems with flexibility in some areas—
Hearsay evidence—sorry.
We are happy to go away and examine the flexibility in that area. It is clear that there has to be a dividing line—the defence could legitimately object that such a person was completely tangential to proceedings. We acknowledge the issue, but we want to make it clear that—to refer back to Paul Martin's point—we have to ensure that everything is covered. Some of it comes down to the particular phrasing of a victim's statement.
The procurator fiscal will read the victim statement to see whether anything in it should be heard at the trial. If the accused person were found guilty, I assume that the judge or sheriff would look at what was relevant.
I accept that as a valid point.
We have to be careful about possible unintended consequences. As the paper sets out, if the victim statement in so far as it relates to impact on a child were to be disputed then, in accordance with the law, a proof in mitigation may be involved and that could be even more distressing to the child. In the circumstances that Cathie Craigie cited, the happiest way of dealing with things is for the woman—or the man—to state the impact on them, as an individual, and then to show the impact on their children by citing instances of withdrawal or whatever. That might be the best way of getting round that.
Okay.
That is dealt with under spouse and cohabitee.
Where does it say that?
I am sorry. I understand that the list has been amended to say "spouse or civil partner".
I fully support victim statements and am pleased that the Government is working with Victim Support Scotland. The booklet says:
We have given significant funding to Victim Support Scotland to upgrade its IT systems to allow it to deal with a variety of provisions that result from the legislation. We fund Victim Support Scotland as a norm, as we do organisations such as People Experiencing Trauma and Loss—PETAL—which works in the Lanarkshire area. We are ever vigilant and on the case to see what we can do to work towards that.
As I said earlier, every member who has spoken today has had a comment to make on the booklet. Will you agree to bring the revised booklet back to committee?
We are more than happy to ensure that the committee sees the revisions and alterations.
I am grateful to the cabinet secretary for saying that the committee can look again at a booklet for which a degree of revision and re-examination is needed.
It would not be, if the child could give the evidence themselves, directly or through a parent or guardian. Such things are a matter of balance. We are happy to consider the issue, because things sometimes go agley in the judicial process—as well as in life and politics. An element of common sense is needed. If a child is clearly distressed and has been a victim, it would be more appropriate to hear about that from the child or their representative than from another victim. It is a matter of considering the particular offence and dealing with the individual.
It is also about the interests of the child.
I do not want to labour this point, because we have gone over it fairly extensively. Am I right in saying that in the vast majority of cases the victim statement would not be available during the trial and would be available only after the accused had pled or been found guilty?
Yes, that is absolutely right.
Therefore, in the vast majority of cases a statement about the impact on the victim's child would not be relevant to the trial. However, if such a statement were relevant and had been released in the circumstances that are described on page 4 of the leaflet, the evidence could be led and challenged, if that were appropriate. It would be perfectly possible to include in the statement information about the impact on the victim's children—I am talking only about minors. In the vast majority of cases, the statement would be dealt with only after the guilty verdict and therefore would have no impact on the trial. If the statement was provided during the trial, it might well be that the information in it was relevant and should be questioned during the trial. I do not see that there is a problem.
It would be for the prosecutor to raise the issue during the evidential part of the proceedings.
We should remember that an aspect of the approach is the provision of an element of therapy, in that it enables the individual to have their say, even if they have given evidence—sometimes they will have given evidence; sometimes they will not have done so. That emerged from the evaluation.
Or indeed an agreed narration.
Common sense and discretion will be needed.
If members have no more questions or comments, we move to item 7, which is formal consideration of the motion to recommend approval of the draft order. I invite the cabinet secretary to move motion S3M-3501—I take it that you do not want to wind up the debate after doing so.
Motion moved,
That the Justice Committee recommends that the draft Victim Statements (Prescribed Courts) (Scotland) Order 2009 be approved.—[Kenny MacAskill.]
Motion agreed to.
I thank Mr MacAskill and his officials.
Meeting closed at 12:38.
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