Justice 1 Committee, 08 Oct 2003

Meeting date: Wednesday, October 8, 2003

Official Report 249KB pdf

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Subordinate Legislation

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Victim Statements (Prescribed Courts) (Scotland) Order 2003 (draft)

Although we have quite a lot on this morning's agenda, the number of papers is probably slightly disproportionate to the amount of business, so I ask members not to be put off by that.

I welcome the minister to this morning's meeting. I know that he was not feeling well yesterday, so I am pleased that he has been able to make our meeting today.

I refer members to the note prepared by the clerk and call the minister to speak to and move motion S2M-421.

As the committee is aware, the Criminal Justice (Scotland) Act 2003 introduced a new right for victims to make a written statement to the court about the impact on them of the crime. It sought not to erode the rights of the accused but to bring a better balance to a system in which victims sometimes feel alienated and do not have a right to tell the court, in their own words, how the crime has affected their life.

We realise that that is an important and unprecedented development and so we intend to pilot victim statement schemes for two years. It is important that we test the procedure and are convinced that it will work in the way in which we intend it to. The pilot scheme will inform our decision on whether the schemes should be rolled out across Scotland.

The instrument before us prescribes the courts in which victim statements will be piloted. There will be two pilot schemes: one covering Edinburgh sheriff court and the High Court; and one covering the sheriff courts in Kilmarnock and Ayr and the High Court on circuit in Kilmarnock. The victim statements steering group, which is overseeing the detailed operational procedures for and implementation of the pilot schemes, agreed the pilot areas and took into account the need to: ensure that the throughput of cases is likely to be high enough to produce a robust evaluation; pilot in areas with sheriff courts and High Courts; pilot in a semi-rural area as well as in an urban area; and avoid piloting in areas that were operating other pilot schemes.

The Procurator Fiscal Service will operate the pilot scheme covering Ayr and Kilmarnock. In Edinburgh, the victim information and advice office will operate the pilot scheme, working closely with the Procurator Fiscal Service. There is on-going discussion with staff in the pilot areas and local liaison arrangements are being finalised.

The pilot schemes will be closely evaluated, which will help to inform the decision on whether victim statement schemes are rolled out across Scotland following the pilot period. In other words, the Scottish Parliament will have the opportunity to reflect on the success or otherwise of the scheme before it is implemented elsewhere. The affirmative nature of the instrument will ensure that Parliament has the opportunity to debate and approve any future roll-out.

I move,

That the Justice 1 Committee recommends that the draft Victim Statements (Prescribed Courts) (Scotland) Order 2003 be approved.

The minister has agreed to take questions of clarification if that would help members before they comment on the order.

During the passage of the Criminal Justice (Scotland) Bill, some organisations expressed reservations about the usefulness of victim statements. I think that the Executive's response to those concerns has been correct. You said that the Procurator Fiscal Service will be in charge of the scheme in Ayr and Kilmarnock, but I did not catch who you said would run the scheme in Edinburgh.

The Edinburgh victim information and advice office will operate the pilot scheme in Edinburgh. It is part of the Crown Office.

Is the reason for having two pilot schemes to allow us to assess the effectiveness of implementing the scheme in different ways?

It is more to do with management than it is to do with assessment. We wanted to run the pilot schemes in places with the necessary resources and expertise. The evaluation and monitoring will be the same irrespective of who manages the service and must be rigorous. As you indicated, there was controversy during the passage of the bill and some people expressed concerns about the impact of the proposals and about whether victim statements would give victims an unfair advantage over the defence.

Not only are we continuing to monitor what is happening elsewhere with regard to such schemes, but we will examine closely the results of the two pilots. We would not wish to go ahead with the schemes if there were serious difficulties with them, nor, I am sure, would the committee and the Parliament. We do not expect there to be any great difficulties, although there will, no doubt, be some teething issues. It is right that we reflect on the success of the scheme and learn any lessons. We should evaluate the pilots carefully and then move on. The question of who operates the scheme is more one of management than one of scrutiny and evaluation.

Does that mean that, once the Executive has assessed the pilot and is satisfied about the best way to run it, the scheme will be delivered in one particular way throughout Scotland?

And managed by one particular part of the service?

Yes.

Not necessarily. I am sure that we will reflect on the day-to-day experiences at Ayr, Kilmarnock and Edinburgh sheriff courts. I would not suggest that there is any predisposition towards one part of the service or another. Local circumstances will be reflected, and we will consider those as part of our evaluation.

So the operation of the scheme could be the duty of the Procurator Fiscal Service in one part of the country and up to victim information and advice in another.

In theory, that could be the case. Victim information and advice and the Procurator Fiscal Service work closely with each other, and will continue to do so, but the victim information and advice service has not yet been rolled out across Scotland. Once it has been, we will have an open mind as to how the scheme will operate best. No doubt, the committee will wish to return to that. It will wish to ascertain whether some of the suggested potential consequences have, in fact, occurred and to assess who is best placed to look after the management of the scheme.

I have not had previous involvement with this, so I seek clarification. Generally speaking, the proposals for victim statements are a good idea, but I wonder about their purpose. Are they intended to offer people a chance to have their say, as part of the process of coming to terms with what has happened in their lives or in the lives of those around them, or are they intended as a substantive statement, which, alongside the evidence led in court, will influence the sentencing decision? If the latter is the case, has the judiciary been given any guidance on what weight should be given to victim statements, especially in relation to other evidence?

We are not considering the principles of the scheme today; Parliament has already decided on those. The order before us today determines in which courts the scheme will operate.

When it considered whether or not to introduce the scheme, the Parliament was influenced by the need for the circumstances, the plight and the feelings of victims to be given some proper weight. All too often, victims felt alienated and marginalised, and that their voices were not being properly heard.

The Sheriffs Association expressed concerns about whether the statements would place more of a burden on the victims. Guidance will be given on procedural matters, for example the stages at which the statements will be lodged and when they will be considered. There will also be guidelines on when the statements should be brought into the public domain. If the procurator fiscal discovered something in a victim statement that was in conflict with evidence led during the case—notwithstanding the fact that the victim statement would not normally be considered until after conviction, but before sentencing—the procurator fiscal would be under an obligation to ensure that any such conflicting information was made available to the defence. In general, the weight that the statement would carry and the influence that it would have would be a matter for individual sheriffs.

If it helps members, we have a policy statement on the principles behind the measure from Jim Wallace, who was the Minister for Justice at the time. My recollection is that, at present, sheriffs can use the information for the purposes of sentencing. That will not change. The principal change will be that the victim will have a right—or not, as the case may be—to write down a statement and the duty to collect one will be reinforced. The policy statement gives the exact position on that.

I understand that the scheme is a pilot and that pilots differ from full schemes, but transfer between courts is an issue. I believe that, if a case starts in an area in which the pilot scheme does not operate and ends up in an area in which the scheme operates, a victim statement cannot be considered at the point of sentencing. Is that correct?

If the case starts in Edinburgh, Ayr or Kilmarnock sheriff court and is then transferred, the right to have a victim statement considered will transfer with the case. If the case starts in a court in which there is no right to make a victim statement, there will be no right to introduce such a statement at a later stage if the case is transferred to Edinburgh, Ayr or Kilmarnock. Because the scheme is a pilot, we want to ensure that it works as smoothly and cleanly as possible. The introduction of the right to make victim statements in areas other than those specified would cause more difficulty than it was worth. It is right that the demarcation should be fairly rigid.

I accept what you say about the pilot and that there are always anomalies. However, when cases end up in the courts that you mentioned, people might feel slightly aggrieved if the victims in the cases before and after theirs are not allowed to give a statement because the cases happened to start just across the border in another area, whereas the victim in their case is allowed to give a statement.

That might well happen and it would be an unfortunate consequence, but the issue cannot be resolved easily. We must ensure that the pilot is robust, works effectively and efficiently and is properly evaluated. I hope that we will demonstrate that the system works well and that it should be applied elsewhere in Scotland.

The Executive has consulted on the categories of prescribed offences. Originally there were only three categories, but the category of racial crimes was added as a result of the consultation. Why was it decided to have categories in the first place, rather than having a catch-all provision under which victims of any crime would be allowed to make a statement? Why are some crimes included and others excluded?

It was felt that some types of crime have greater consequences for the victim than others do. The schedule to the Victim Statements (Prescribed Offences) (Scotland) Order 2003 contains a fairly wide list of offences, which covers most offences that involve some degree of trauma for the victim. The categories include non-sexual crimes of violence, sexual crimes of violence, indecent crimes, housebreaking and, as you say, racially motivated crimes, which were added following the consultation.

Road traffic offences have also been included. I am sure that most MSPs have come across cases in which the family of a person who has been injured as a result of a road traffic offence feels aggrieved. There have been some high-profile cases in which the victims' families have felt that insufficient attention was paid to their circumstances. There is a good reason for including road traffic offences.

It is worth reflecting on the fact that, following the pilot, there will be the power to prescribe all offences, if that were considered appropriate. In other words, once the committee and the Parliament have had an opportunity to reflect on how successful the pilot has been, they might well decide that, instead of just a certain list of offences being prescribed, they want any offence to be covered.

I thought about an example that did not seem to fit into the list—crimes against shopkeepers or shop workers. Such crimes are not necessarily violent and do not fall easily into other categories, but many shop staff are the victims of quite traumatic robberies. I do not know whether that kind of crime would fit within any of the prescribed categories.

Assault would certainly—

I appreciate that, but I am talking about crimes against shop workers that do not involve an actual physical assault.

I accept what you say. Once the pilot has been completed, there will be the opportunity to widen out the scheme.

You are aware that the Victim Statements (Prescribed Offences) (Scotland) Order 2003 (SSI 2003/441) is being considered under the negative procedure rather than under the affirmative procedure. There are several offences in several categories in relation to which people will, I am sure, see the benefit of having a victim statement. I hope that that will strengthen our determination to extend victim statements throughout Scotland and perhaps to extend the list of offences.

As the minister said, the instrument in which the prescribed offences are listed is a negative instrument.

I concur with Stewart Maxwell's view that it is worth considering including in the list the crime of robbery. If someone is held at knifepoint and there is no assault, that would be the crime of robbery, which is not listed, even though the episode is perceived as being violent.

We will reflect on what the committee has said and will consider whether there is any justification for extending the current list. At any rate, there will be the opportunity to widen it out at the end of the pilot.

Thank you very much. I do not think that there are any further comments or questions.

Motion agreed to.

That the Justice 1 Committee recommends that the draft Victim Statements (Prescribed Courts) (Scotland) Order 2003 be approved.

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Victim Statements (Prescribed Offences) (Scotland) Order 2003 (SSI 2003/441)

Under agenda item 3, we will deal with a number of instruments subject to the negative procedure, which is different from the procedure under which we have just considered the draft Victim Statements (Prescribed Courts) (Scotland) Order 2003. We are grateful that the minister has agreed to stay to clarify any points that arise.

We have had some debate on SSI 2003/441 already. As there are no further comments on it, are members happy to note it?

Members indicated agreement.

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Victims' Rights (Prescribed Bodies) (Scotland) Order 2003 (SSI 2003/440)

Are

Members indicated agreement. members happy to note SSI 2003/440?

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Children's Hearings (Provision of Information by Principal Reporter) (Prescribed Persons) (Scotland) Order 2003 (SSI 2003/424)

The order is reasonably straightforward. Are members happy to note it?

Members indicated agreement.

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Gaming Act (Variation of Fees) (Scotland) Order 2003 (SSI 2003/403)

Agreeing the variation of fees for gaming is an annual event. As there are no comments on the order, do members agree to note it?

Members indicated agreement.

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Criminal Justice (Scotland) Act 2003 (Transitional Provisions) Order 2003 <br />(SSI 2003/438)

Is the committee happy to note the order?

Members indicated agreement.

I thank the minister for coming along to our meeting.