Victims’ Rights (Scotland) Regulations 2015 [Draft]
Item 3 is consideration of the first affirmative instrument today. Remaining with us is Paul Wheelhouse, the Minister for Community Safety and Legal Affairs. With him from the Scottish Government are Neil Robertson, European Union criminal justice team; Graham Ackerman, victims and witnesses team; and Craig McGuffie, directorate for legal services. Good morning to you all.
I remind you that this is an evidence session, so the officials can speak if the minister wishes, but they cannot speak in the formal debate that will follow. The same will apply when we come to the next affirmative instrument. I know that you all know that by now, so I really should not teach my granny to suck eggs.
Because the regulations seek to transpose an EU directive on victims’ rights and appear to create substantive new rights and obligations, the committee issued a targeted call for evidence on them. We are grateful to those who responded, and those responses, which have been published on our website, will inform our evidence-taking session.
I invite the minister to make a brief opening statement.
The Victims’ Rights (Scotland) Regulations 2015 will, in conjunction with the Justice of the Peace Courts (Special Measures) (Scotland) Order 2015, which the committee will also consider this morning, complete our transposition of directive 2012/29/EU, which is commonly known as the victims’ rights directive. The directive establishes minimum standards on the rights of, support for and protection of victims of crime. It seeks to ensure that all victims of crime receive appropriate protection and support; can participate in criminal proceedings in accordance with national law; and are recognised and treated in a respectful, sensitive and professional manner.
The Victims and Witnesses (Scotland) Act 2014 goes some way towards fulfilling the directive’s requirements. However, I will explain why further provision is required to implement the directive fully. When the Victims and Witnesses (Scotland) Bill was developed, we focused on key areas of the directive that required new procedures or extensive changes to existing procedures—for example, giving victims a right to certain information; giving certain individuals a right to choose the gender of their police interviewer; and making extensive changes to the procedures whereby special measures are made available to vulnerable witnesses.
We were aware that further work to ensure full transposition of the directive would be required, but we considered that it could be done largely on a non-statutory basis. Many of the directive’s requirements, such as the right to interpretation and translation, are already delivered operationally, and we were keen not to legislate unnecessarily.
However, following the passage of the bill, the European Commission published guidance. That guidance—the evidence that Scottish Women’s Aid provided refers to it—outlines the approach that member states are expected to take in transposing the directive.
The guidance suggests that a specific legal framework that encompasses all the directive requirements and enables individuals to clearly recognise their rights and obligations should be put in place. In light of that, we came to the view that putting the remaining directive requirements on a statutory footing is necessary and—taking into account the Commission’s view on clearly setting out victims’ rights—desirable.
Together with the existing provisions in the 2014 act and the order that is to be considered shortly, the regulations achieve that purpose. They do so by amending the 2014 act to extend the rights of victims of crime by creating enforceable rights and by placing obligations on competent authorities such as the Scottish Courts and Tribunals Service, the Crown Office and Procurator Fiscal Service and Police Scotland.
As the evidence provided by the Faculty of Advocates indicated, many of those rights are already delivered in practice. For example, the regulations give victims the right to interpretation and translation, but those services are already routinely provided by the competent authorities.
In addition, the regulations provide for the Scottish ministers to publish an information booklet known as the “Victims’ Code for Scotland”, which will be published on the day that the regulations come into force. I am holding up the finalised draft here. We have produced the booklet in collaboration with criminal justice agencies and in consultation with victims’ rights groups. The code provides important information for victims on their rights under the amended 2014 act—
Can I stop you there, minister? You held something up just then—can we go back to it?
We have not yet published the booklet that I held up, convener, so I apologise that you have not yet seen it.
When will we see it?
In about three weeks’ time, once the regulations are in place. We did not want to be presumptive by publishing the booklet before the regulations were approved.
The code signposts victims to the relevant authorities, which can give them further help, support and advice. As the code’s introduction states,
“By ensuring victims’ interests remain at the heart of our criminal justice system, victims should feel supported and informed at every stage of the process”.
The code is intended to be a living document that is subject to regular review. We have already discussed with Children 1st the creation of a child-friendly version, and we have discussed other aspects of the code through the victims organisations collaboration forum Scotland.
It goes without saying that the Scottish Government is committed to strengthening the rights and protection of victims, and our record backs that up. We believe that the regulations will enhance those rights and that protection. I look forward to taking the committee’s questions.
We have had representations from children’s organisations that the draft victims code should be child friendly. Would you like to comment on that? You might also want to comment on the use of intermediaries.
On the first point, we have had discussions with Children 1st. We hope that the full version of the code, which will mainly be used by adults, will be simple to read and understand, but we want to allow for the fact that we have to cater for the needs of children, who—sadly—present as victims of crime all too often. We want to ensure that they have a version that is easy for them to understand and absorb and we want to enable them to feel comforted that they have the support that they need.
Graham Ackerman might be able to give more detail on the discussions that we have had with Children 1st, which might aid Mr Campbell’s understanding. I will then return to the issue of intermediaries.
In putting together the draft victims code, we have had extensive conversations with Children 1st, Scottish Women’s Aid, Victim Support Scotland and others, as the minister said. We want to ensure that the code is as accessible as possible and that it can be read and understood by people. Along those lines, we have been discussing with Children 1st how best to produce a child-friendly version of the code, and we have been looking at whether we need to produce an easy-read version for those with learning difficulties who might otherwise struggle to understand the code. We will take that forward over the next few months.
What puzzles me slightly about a child-friendly code is what age group you would pitch it at. That could become quite complex.
That is one of the issues that we would like to discuss with Children 1st, because there is clearly a difference between what a seven-year-old understands and what a 17-year-old understands.
Will there be pictures? To be serious, that might be necessary to enable young children to understand the code.
To be serious, child-friendly versions and easy-read versions quite often have pictures in them to aid understanding, particularly if we are talking about different stages of the justice process and different things that people might have to go through.
Why are you not speaking to the Children and Young People’s Commissioner Scotland, who has to put out child-friendly stuff all the time?
We have been in touch with the commissioner.
As for intermediaries, our focus to date has been on the effective implementation of other vital improvements to special measures under the Victims and Witnesses (Scotland) Act 2014, but we intend to consider intermediaries in due course, including as part of on-going work to look at the provision of support through the appropriate adult scheme to those who have communication difficulties.
Reference has been made to the barnehus model in Norway. That approach was recently discussed in the Scottish Courts and Tribunals Service’s “Evidence and Procedure Review Report”, which examined ways of improving how evidence, including evidence from children and vulnerable adult witnesses, is taken. Such a system would involve taking evidence early, which is the only time when evidence is required to be taken in the Norwegian model.
Following the publication of the review report earlier this year, the SCTS arranged a series of events to explore the implications of the report’s propositions with relevant agencies and bodies. The events, which ran between May and August, brought together the Scottish Government, other justice agencies, the legal professions, victims groups, academics and others with an interest in criminal justice. Feedback from the events will be used in the preparation of a supplementary report that will shortly be submitted to the justice board for consideration. I hope that that helps members to understand what we are doing in relation to that aspect.
The EU directive encourages the police, prosecutors and judges to treat victims with respect and states that those individuals should be properly trained to deal with victims. Are you content that the regulations will adequately cover judges? What avenue of redress would a victim have if they felt that they had not been properly treated by a judge?
Once the regulations come in, training will be essential for all who interact with vulnerable witnesses. As we have just been discussing, we are dealing with some particularly sensitive groups, such as children and those who have suffered serious violence, and it is important to understand and implement the latest thinking on how we manage the needs of those victims and witnesses sensitively. I hope that, through the work of the justice board in bringing together agencies that include the Scottish Courts and Tribunals Service and, through the SCTS, the judiciary, we can ensure that all are trained in how to implement best practice in relation to vulnerable witnesses. I am not sure whether I have picked up Mr Finnie’s point correctly.
I do not know whether the minister is aware of the recent publicity regarding a court case in which comments were attributed to the initial trial judge, which surfaced at the subsequent appeal, that were really quite shocking. I wonder about the extent to which judges can be compelled to attend training, because there is a view that judges are—if you will excuse the pun—a law unto themselves when it comes to a lot of these matters.
I assure the member that I can look into that. I am not aware of the specific case, but I am concerned to ensure that all those who are required to understand the latest regulations—if the regulations are passed by Parliament—are up to speed with what is required by the Government and by Parliament in passing legislation. I invite my colleague Neil Robertson to comment on anything that he is aware of in relation to the discussions on the role of judges.
We have contacted the Judicial Institute for Scotland, which provides regular training to judges on the needs of victims and what is required in a court setting. Criminal justice agencies are carrying out a lot of work as well. For example, the Scottish Courts and Tribunals Service, in association with Victim Support Scotland, has trained all its court officers in how to deal with victims, because they deal with victims who are giving evidence in court every day.
10:45
What redress, if any, would be available to a victim who was aggrieved by their treatment?
The regulations make provision for a complaints procedure, which we see as being the competent authorities’ normal complaints procedure. That is normally a two-step procedure. If the victim is not happy with that, they can go to the Scottish Public Services Ombudsman or, in the case of the police, to the Police Investigations and Review Commissioner. Because the rights will be legally enforceable, judicial review could come into play subsequently.
We are trying to avoid a circumstance in which someone who, for example, did not get the expenses that they thought that they would get for turning up at court to give evidence has to go straight to raising a small claim action against the Crown Office to get their money back. We thought that using the complaints procedure would allow them to handle the situation more informally and would be more user-friendly from the victim’s point of view.
Is there a role for the Lord President if a judge says something untoward? I take it that people cannot complain to the ombudsman about a Court of Session judge. What would happen?
There is a code of conduct for the behaviour of judges in the court system, and the Lord President has oversight of judges’ activities. I am happy to come back, if this would be of interest to Mr Finnie, on the provisions that are available, and to discuss that with the Lord President when I next meet him.
Has the impact that the regulations will have on support services been considered? What measures have been put in place to ensure that there are enough services to meet the demand and that there are no barriers to accessing the services?
We are conscious that there has been debate about support for organisations that represent and support victims through the court process. I fully accept Margaret McDougall’s point that, for the system to work well, we must have well-supported organisations that do that. Often, they can provide a less intimidating way for a victim to get advice and support than can be provided by more formal channels and the justice partners.
We have had productive discussions with organisations that represent victims and support their rights. We believe that the regulations provide the legal framework for transposing the directive. Equally, however, through other channels, we can provide the appropriate support to those organisations, and we will continue to do so as required.
Graham Ackerman has had some discussion on the issue and can perhaps add to what I have said.
As the minister said in his opening statement, the majority of the requirements in the regulations are things that various competent authorities already do. In that regard, I do not think that the impact on victim support services will be significant. We appreciate that those services provide a lot of support to victims across Scotland, and we are engaged with them to ensure that they are aware of what we are doing and that that support is in place.
We are aware that victims can self-refer to Victim Support Scotland, regardless of whether they have reported the crime, and that might be their preferred way of approaching the issue. We are also placing an obligation on criminal justice agencies—the police, the Crown Office, the Scottish Courts and Tribunals Service and others—to refer victims to victim support services on request, so there will be signposting to make people aware of the services that exist. As Graham Ackerman said, mechanisms exist to support such organisations.
Will the support organisations have the resources to deal with any additional services that they might be asked to provide as a result of the regulations?
It is difficult to anticipate the level of additional activity, but there will be continuing dialogue with victim support organisations to ensure that they have the resources that they need and, where possible, to support them in doing their work, which I appreciate is vital. It is difficult to anticipate exactly what impact there will be; it depends on the prevalence of crime and the impact on individuals.
Scottish Women’s Aid’s submission comments on a victim’s right to receive information concerning an offender’s release. Although it welcomes the proposed changes, which will enable a victim to obtain certain information—such as information about the release of a prisoner, including any licence conditions—it notes that there is nothing to say that victims will get such information when a prisoner is released temporarily. Will you consider providing for that?
I recognise the importance of providing timely information to individuals, but we believe that by enabling victims to receive information about prisoners who have received less than 18 months’ imprisonment we are leading the way in the UK on victim notification services. In England and Wales, victim notification services apply to prisoners who serve sentences of more than 12 months.
We consider that, for prisoners who serve less than 18 months, a proportionate, lighter-touch approach should be taken, rather than extending the full VNS. For that reason, the scheme that relates to such prisoners will mirror more closely the directive requirements, such as not including information about the death or transfer of a prisoner.
In response to a question that Scottish Women’s Aid raised, I would say that prisoners who are sentenced to less than 18 months are more likely to be released on home detention curfew than on temporary release. Temporary release of prisoners who are serving sentences of less than 18 months is infrequent, if not rare.
In considering whether a prisoner is eligible for temporary release, the Scottish Prison Service carries out a wide-ranging risk assessment, which involves community partners and the police. If there was an assessed risk to a victim, temporary release would not be permitted. Prisoners who are released on home detention curfew fall within the scope of the new VNS.
We are taking an approach that reflects the complexity of the situation and the need not to notify victims of the death or transfer of a prisoner in certain situations, which victims would not necessarily want to be contacted about.
I understand what you are saying but, even if a prisoner who was released temporarily had been assessed as not posing a risk, if the victim met that individual in the street or on a bus, it would be a shock to them to have that confrontation. That is why it would be good to include that aspect.
I will bring in my colleague Neil Robertson to explain the position.
There are circumstances in which the victim would be made aware of the release. I spoke to colleagues in Police Scotland about this. The victim is not necessarily made aware when the prisoner is released, whether temporarily or permanently, but each release is assessed case by case. A victim is updated and protective measures are put in place if the police think that there is a continued risk to them.
I understand the concern that somebody might bump into an individual when they were not aware that they had been released. In certain circumstances, that could be quite upsetting, if not worse, for the victim.
The issue that we are dealing with is that the temporary release of prisoners who are serving sentences of less than 18 months is infrequent, if not rare. There are notification procedures for the release of prisoners who have received sentences of more than 18 months, which are more rigorous. In the case of relatively serious offences, more rigorous information would be provided to victims, which would reflect the increased risk to them. If there was an assessed risk to a victim, temporary release would not be permitted under the model for those who are serving sentences of less than 18 months.
My issue is not the risk but how distressing it could be for a victim to meet the temporarily released prisoner. I do not see that it would be that difficult to include such provision in the regulations. If the victim is told when the prisoner is being released permanently, why cannot they be told when the prisoner is to be on temporary release?
If that is for me, convener—
This is not “University Challenge”.
Indeed. I will bring in Craig McGuffie to address that question. I take the very important point that Margaret McDougall has made. If I were a victim of a crime, I would feel very uncomfortable if I bumped into the offender without having known that they had been released.
Short-term prisoners, who are sentenced to 18 months or less, can be released unconditionally at the halfway stage of their sentence—at nine months or less. Many of those prisoners’ first form of release is on a home detention curfew. If they are granted a home detention curfew, that is notified to the victim, if the victim has chosen to receive that information under section 27A of the 2014 act.
Temporary release is a strange beast, in that it is granted on a daily basis. Under section 16 of the Criminal Justice (Scotland) Act 2003, which is the main notification scheme, victims are informed only of the first point at which the person becomes eligible for temporary release rather than every time the offender is released.
An offender could be released for work daily—for example to stack shelves in a supermarket—and then return to prison. Informing the victim every day that the person was being released would create an administrative burden.
The victim would not have to be informed every day—they could be told that the person is now being temporarily released daily and would have to be told only once that the prisoner was in that position.
Given that temporary release is relatively rare for offenders who are sentenced at that level, and the administrative burden that would be placed on the prison service, the decision was taken—
If temporary release of such prisoners is very rare, surely it would not create an additional burden.
It would involve checking of records to match up the people who were released with requests for information.
It would be good to make further inquiries into that. Margaret McDougall has made the reasonable point that, rather than it being done every time the prisoner is released, the victim could be told once that the prisoner is on a temporary release scheme. The victim might wander into the supermarket in which the prisoner is stacking shelves. It is about managing victims so that they understand and are not out of the loop.
I would like to hear more about that point in writing. We need an explanation of what would be involved. If the prisoner is on a scheme of day release, tell the victim about it so that they know that: they would not need to be told every time.
On risk, it would be very disturbing and upsetting for the victim to bump into the prisoner when they were doing their shopping in Tesco, and round the corner comes the person who had been put in jail. There are issues.
I take the point entirely and I am sure that my colleagues do, too. I repeat that we think that that would happen relatively rarely because the scheme applies only to those who have sentences of less than 18 months. I accept that that means that the resource implications might not be enormous. We will take the issue away and discuss it further with Scottish Women’s Aid and others to see whether there is a way that we can deal with it through the procedures that apply in the regulations. We will try to address the point.
Thank you.
You will be aware of Scotland’s campaign against irresponsible drivers, which argues in its submission that the regulations do not meet the underlying principles of European Parliament directive 2012/29/EU in respect of victims of traffic incidents. It says that
“Victims injured and families bereaved by road crashes”
do not know when
“the penalty of disqualification imposed on offenders by the courts will not be fulfilled”.
There is not an opt-in process for them to find out, for example, whether the person has applied to get their licence back early. Could that be addressed in the victims code?
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Dr Murray has raised an interesting point. First, I should mention that SCID’s proposal is not a directive requirement and so is not directly relevant to the regulations. However, we are aware of the proposal and we gave it full and careful consideration earlier this year with Police Scotland, the Scottish Courts and Tribunals Service and the Crown Office and Procurator Fiscal Service. We have indicated to SCID that although we do not at present intend to pursue the establishment of a notification scheme on reinstatement of driving licences, we will keep the matter under review and consider it again if any future work is carried out in relation to the information that is provided to victims and their families more generally.
We have also initiated discussions with relevant justice organisations to explore what can be done to improve the information that is available in the circumstances that are set out in SCID’s proposal. For example, ensuring that bereaved families are aware at the outset that offenders may have their licences returned, and the timescale within which that may happen, would mean that they would know what to expect, which would reduce the potential distress when families observe offenders driving again.
We are also looking at the matter in the context of on-going work to consolidate useful advice and assistance for victims and witnesses on our new website at www.mygov.scot. I hope that that helps to reassure Elaine Murray that we are aware of the issue. We are considering what we can do to find an alternative approach that might provide more information to families in advance, when they have suffered a bereavement or serious injury as a result of a road traffic accident, to avoid their becoming aware in a similar way to the case that Margaret McDougall referred to, in which the victim saw somebody driving when they were not expecting to, which can be quite shocking.
Is SCID aware of those discussions? Has SCID been involved?
SCID has been involved not with me, but with officials.
It has been mooted at various times that there should be a victims commissioner to champion the rights of victims. What are your views on that?
I am aware that a victims commissioner has been proposed in the past, and was discussed more recently in the context of the Victims and Witnesses (Scotland) Bill. The points that have been raised by stakeholder groups including Victim Support Scotland, in its published report on the Victims and Witnesses (Scotland) Bill, and Scottish Women’s Aid, in its evidence to the committee on 16 April 2013, are the most compelling way to respond to that question. Money that might be spent on setting up a new commissioner’s office could instead be used on front-line service delivery.
We believe that a victims commissioner would largely duplicate the role that is filled by Victim Support Scotland and other victim support organisations and we feel that the resources would be better used in supporting the immediate needs of victims. I would be happy to consider revisiting the issue, if the evidence and key stakeholders that work on the ground agree that such a role would add value.
The Faculty of Advocates said in its submission that
“there does not appear to be a recognised mode of redress; and there is no independent body to which complaint may be made.”
If a victims commissioner is not the answer, is there some way in which existing organisations could be strengthened in order to achieve that?
We believe that we have addressed that matter in the point that we made earlier to Mr Finnie, about the complaints procedure in relation to the judiciary and other parties—
Except that the Faculty of Advocates said that
“there is no independent body to which complaint may be made.”
It went further and suggested that a commissioner might
“deal with complaints ... review the Code; and enforce the Regulations.”
A commissioner would do more than deal with complaints.
I am informed that the SPSO would be able to review the quality of the services that are provided. We are happy to come back with further detail on that, if that would be helpful.
Would you be prepared to monitor the effectiveness of the commissioner’s work in England to see what fruit that bears? I understand what you are saying about it always being better to use the money in the best way we can, but there is such a commissioner elsewhere from which we might get evidence about whether our having one could be cost effective.
That is a very reasonable point. I said in my remarks that we are open to persuasion, if stakeholders believe that a commissioner would add value. If we can look at the operation of the system in England and see that it is delivering for victims without taking excessive resources away from the front line, that is clearly something that we can reflect on in the passage of time and then come back with a proposal.
I suppose that our first focus is to ensure that key organisations such as Victim Support Scotland have the best resources that we can provide to meet the front-line and immediate needs of victims, and to ensure that they are given appropriate advice and support through a process that is, although traumatic, improving over time and, I hope, becoming more sensitive to victims’ needs. However, as colleagues around the table have indicated, the importance of victim support services cannot be overstated; we want to ensure that we maximise funding for them at the front line from the resources that we have.
I want to raise a couple of issues that have been highlighted by Scottish Women’s Aid and others. First, we have heard that regulation 2 is missing some wording
“to the effect that the exercise of the rights under the Act and the provision of support is not conditional on a victim’s residence status, citizenship or nationality.”
Why has that not been included in the regulation?
Neither the regulations nor the 2014 act restrict in any way, or impose conditions on, the rights conferred to a certain class of citizen based on residence status, citizenship or nationality. Accordingly, all victims of crime in Scotland, whoever they are and wherever they might be from, benefit from the rights and protections in the directive. Moreover, no victims organisations that are funded by the Scottish Government place any such restrictions on use of their services. I hope that that reassures Christian Allard that the intention of the policy and, we believe, the regulations as drafted will deliver, regardless of where an individual is from or their nationality. If the person is a victim in Scotland, they will receive support in Scotland.
Recital 10 of the directive makes things a lot clearer, and I suggest that it might be a good idea to repeat its wording in regulation 2.
Secondly, although regulation 3 contains a lot of very good things, including giving victims the ability to understand proceedings, it does not do as much to give people the right to be understood. Again, it does not follow the wording in the directive in respect of enabling a victim
“to make the complaint in a language that they understand”.
Would you be minded to amend the regulation accordingly?
Neil Robertson will comment on the wording of the regulation.
Any victim who uses the complaints process will be covered by further sections that the regulations will insert into the 2014 act, including proposed new section 3E, which covers the right to understand, and proposed new section 3F, which covers the right to interpretation and translation. That, coupled with the further general principle that the victim should be able to understand the information that they are given, and that the information that they provide should be understood, will ensure that when they make a complaint they will receive the appropriate language support. There is no need to make specific provision for that in the complaints process, because it is covered elsewhere in the regulations. If the individual is obliged to receive information, they can have it translated for them.
I was just thinking that we spend a lot of time trying to translate what victims are saying instead of doing the contrary—in other words, simply hearing their own words and perhaps ensuring that the system has a much better understanding of the language of victims.
I will add what I think is an important point. Clearly, it is critical for the victim to be able to understand their rights. Given that they are not likely to be sitting with a copy of the regulations, the victims code, which will be given out to the victims of crimes, will be crucial. We propose translating the code into the top 10 languages and then to do so, based on demand and as required, with other languages to ensure that we make, as far as we possibly can, the appropriate information about victims’ rights and their ability to seek translation services and any other facilities that they need clear and understandable to them, and to ensure that they know their rights and responsibilities as a victim in Scotland.
I understand the point that you are making, minister, but my point is not about victims being able to follow a language or about translating what they are saying into legal language, but about allowing them to express themselves in their own words and ensuring that people are trained to understand them.
I take the point. I think that Craig McGuffie would like to make a comment here.
Proposed new section 3E of the 2014 act, which is in regulation 5, goes some way towards addressing that issue. It says that a competent authority must take measures to assist the person
“to understand the information given to the person by the authority”,
and to help the person
“to be understood in the person’s interaction with the authority”.
It is a two-way process. The authority has to take measures to understand the victim and to help the victim to understand the authority.
It is helpful that it goes both ways. When we talk to victims, we need to ensure that we use their language as much as possible.
There is a point in the regulations that might be worth reading out verbatim, so that it is clear. Proposed new section 3E(4)(b) says that an authority has to
“take into account any personal characteristics of the person which may affect the person’s ability to understand the communication and be understood in responding to the communication.”
We recognise that people communicate in different ways. One of the concerns that we all have about people who end up in institutions such as Polmont young offenders institution is about the communication problems that such people have. We need to understand people and how they communicate so that they do not get frustrated. That applies equally to victims. We need to understand how people express themselves, in what will be very emotional situations, and be able to reflect on that.
The Faculty of Advocates and Scottish Women’s Aid raised a concern about regulation 13 and proposed new section 9A, which is on “Victims’ right to protection during criminal investigations”. The faculty said:
“We consider that the meaning of a ‘criminal investigation’ in the Directive—using a purposive interpretation—is wider than set out in ... 9A”.
Scottish Women’s Aid put it another way: it stated that
“Article 20 ... does not limit such protection to interviews carried out solely by the police.”
Both organisations cite various things that should, perhaps, come under the regulations, including identification parades, searches and seizure of property, and locus visits. In all solemn cases and sexual offence cases, the victim should be able to be accompanied when they have meetings with the Crown.
In regard to the perceived narrow definition of “criminal investigations”, the focus of article 20 is protection during criminal investigation and in particular interviews. That is backed up by the European Commission’s guidance, which makes it clear that the right to be accompanied relates solely to interviews with the police. Accordingly, we are legislating for the right of victims to have support during police interview, but the article calls for support during criminal investigations. In Scotland, there is already a well-established approach of drawing a line between criminal investigations and proceedings—namely, that criminal proceedings begin when the police lodge a report with the Crown Office and Procurator Fiscal Service. It follows that precognition, as part of criminal proceedings, would not be covered by the directive. That is our understanding of what is required by article 20, and it is reflected in the regulations.
I think that those organisations, especially Scottish Women’s Aid, were looking for the victim to be able to be accompanied by a person of their choice at any meetings with competent authorities unless there is a very good reason not to allow that, because of a possible contrary interest or prejudice to the proceedings, for example. The provision should be amended to reflect that.
I will bring in Neil Robertson on that.
As the minister has stated, in compliance with the directive, the measure covers only interviews as part of criminal investigations. We have spoken to the competent authorities to ask them what would happen beyond that. For example, the police would consider allowing somebody to be accompanied at an identification parade, if that was appropriate, and the Crown Office would allow a victim to be accompanied at the precognition stage, if it felt that to be appropriate.
The directive does not oblige us to provide a right to those things, and we cannot do that without going beyond our powers. However, it is not the case that as soon as the first interview is over support drops away; support follows through and is provided on a more bespoke basis. The individual needs of each victim are considered and someone who needs and wants support will be allowed it.
As long as there is discretion attached, there will be some doubt. That is possibly not the best way forward. That may be something to note.
11:15
In its submission, Children 1st expresses concern about the definition of “parent”. It states:
“Although we understand that the definition of ‘parent’ in the regulations refers to any person holding parental responsibilities for that child within the meaning of the Children (Scotland) Act 1995 it would be helpful to clarify the rights of informal kinship carers who do not have (or do not yet have) parental responsibilities in this context.”
That embraces quite a lot of people. Can you advise what rights such informal carers would have? They include many grandparents.
As I understand it, there is a power for competent authorities to extend the victim’s right to other appropriate persons, including kinship carers, if it is in the child’s best interests to do so. I hope that that covers what you meant, although I appreciate that you may be making a slightly different point.
My point is that kinship carers do not have a statutory position; they do not yet have, in statute, parental responsibilities, although they may have applied for them. Some may have ended up with responsibility for the children within days of something happening. Parents may be part of a prosecution. Can something be done to give kinship carers, or informal carers, such rights? It would have to be quickly done.
I will bring in Neil Robertson to speak on proposed new section 29A.
Proposed new section 29A of the 2014 act will allow the parents to come in, if that is appropriate. However, there are circumstances in which, as the convener has identified, it may not be appropriate for a parent to be there to support a child. For that purpose, proposed new section 29A(4)(b) will allow the function to
be exercisable in relation to, or at the request of, such person as the authority considers appropriate having regard to the age, maturity, views, needs and concerns of the child.
That is a provision whereby, if a parent is not the suitable person, somebody else can be brought in to support the child.
If a child was a victim of the parent, could someone be put in place almost immediately? How quickly can that be done?
There are steps to go through. First, it is asked whether it is in the interests of the child to be there by themselves. For example, somebody who is 16 or 17 could be living away from home and be employed. Would it be appropriate in such circumstances to involve their parents? Perhaps for a younger child it would be, but at 16 or 17 people can make that decision.
You also asked whether it is appropriate that a parent—
I am talking about cases in which the parents have committed the offence against the child. Unfortunately, that happens.
It is asked whether it is in the best interests of the child for the parent to be involved. If the answer to that is immediately no, proposed new section 29A(4) provides for another appropriate person, which would cover kinship carers and a range of other people.
I am talking about informal or kinship carers, who are not statutory carers, and who have had to take in children in an emergency. Such things can go at a rate of knots. How quickly can such individuals—who are often grandparents or sisters—be put in that role? Are you saying that there is not a gap in them becoming statutory carers?
No. Obviously, background checks and the like may have to be done to ensure that the person is appropriate. However, that happens as the authority considers appropriate. The authority will take into account—
The authority being?
The competent authority is most likely to be the police when the child is up for interview after the offence is—
Okay. I did not think that such situations were covered.
I am sorry. I did not realise that Alison McInnes was waiting.
That is okay. I indicated some time ago that I wanted to come in.
I want to return briefly to resourcing. The regulations will place duties on the police and the court services in relation to provision for individual assessment of victims in criminal investigations and, of course, for protection of victims, including specially designed interview rooms, specialist interviewers and separate waiting rooms for victims in court buildings. What assurances can you give us that the competent authorities will prioritise capital spend on some of those issues?
I am happy to come back to the committee with detail on that. Having responded to parliamentary questions and read briefings on the matter, I am aware that significant work has been done to improve the experience of victims in the court estate. My colleagues on the justice board have made it a high priority to address that issue, given the increase in the number of domestic violence and sexual abuse cases that are coming before sheriff courts, which are becoming a more important part of those courts’ work. They are increasing their focus on minimising the trauma of victims’ experience of coming to court. I can come back to the committee with some practical examples of what has been done to date, if that would be helpful. We are treating the issue as a high priority—particularly given the First Minister’s focus on tackling violence and sexual abuse.
I would be grateful for that.
I know that the minister has a commitment at another committee and we also have another item of business, so I ask Roddy Campbell to be quick.
I will keep it short. The regulations are intended to transpose the directive, but it is clear to me, from both the regulations and our 2014 act, that victims are a movable feast. What assurances can you give us that the Government will monitor closely how victims are treated in the system, and review that to see what further steps are needed?
I give a personal commitment that the matter is something that I take very seriously, as I know the cabinet secretary does. As I have just said to Alison McInnes, it is a high priority for both the Government and the Opposition parties; we want to ensure that the experience of courts for women in particular, and men occasionally, who have suffered domestic violence or sexual abuse, is improved. We are all concerned about the welfare of children and vulnerable witnesses in the court system. It will remain a high priority for the Government.
The European Commission will also maintain a focus on the issue; it has been taken on as a priority of the Dutch presidency, which will be assumed next year. Over the next six months, there will be a focus on what jurisdictions in member states are doing to address the issue. There is growing momentum at European and domestic levels to tackle the issue.
That ends the evidence session, which has been very full. It might be useful for us to write a report on it, so that we can review the position and monitor it, should the regulations be approved in the next item of business. The discussion has raised some interesting issues. Are members content for us to produce a short report?
Members indicated agreement.
We now move to the motion on approval of the instrument.
Motion moved,
That the Justice Committee recommends that the Victims’ Rights (Scotland) Regulations 2015 [draft] be approved.—[Paul Wheelhouse.]
Motion agreed to.
Justice of the Peace Courts (Special Measures) (Scotland) Order 2015 [Draft]
So that the minister can keep to his schedule, we move straight on to the next item of business, which is consideration of another draft instrument that is subject to affirmative procedure. I invite the minister to make a brief opening statement—he knows his own timetable.
Thank you, convener. I will keep it brief.
The draft Justice of the Peace Courts (Special Measures) (Scotland) Order 2015 is the second instrument to contribute to our transposition of European Parliament directive 2012/29/EU—the victims’ rights directive. I have already set out the background to our transposition approach, but it might be useful to outline briefly the purpose of the order.
The order will allow special measures to be used for the benefit of vulnerable witnesses who give evidence in the justice of the peace courts. Special measures include, for example, enabling vulnerable witnesses to give evidence from behind a screen to prevent their seeing the accused, or via live videolink so that they do not have to be present in court.
Such special measures have been available for some time in the sheriff courts and the High Court, and their provision was recently expanded through the Victims and Witnesses (Scotland) Act 2014.
We consider that the extension is required to ensure compliance with the victims’ rights directive. In principle, it is right that the same protections should be available to vulnerable witnesses who give evidence in JP courts.
I look forward to taking the committee’s questions.
Will you clarify for the record why JP courts were not included when special measures were first introduced?
We are bringing the process in the JP courts up to date with the remainder of the estate. It is not for me to speak for the previous Administration, but I understand that during the passage of the Vulnerable Witnesses (Scotland) Act 2004, the then Scottish Executive set out two reasons why it considered that extending special measures to the district courts was not considered necessary. First, the need for extension had not been demonstrated, and secondly, the future of district courts was unclear, pending the outcome of the review of summary justice that was being carried out by Sheriff Principal McInnes.
Now that the uncertainty of the district courts has been resolved, with the unification of the JP courts having been completed in 2010, with the progress of the implementation of the 2014 act and with compliance with the EU directive on victims’ rights to the fore, the Government considers that now is the time to commence the provisions in the Criminal Procedure (Scotland) Act 1995 and to make special measures available in the JP courts as well.
Motion moved,
That the Justice Committee recommends that the Justice of the Peace Courts (Special Measures) (Scotland) Order 2015 [draft] be approved.—[Paul Wheelhouse].
Motion agreed to.
As members are aware, we are required to report on all affirmative instruments. As I already mentioned, we will write a more lengthy report on the previous instrument. Is the committee content to delegate authority to me to sign off reports on the two instruments that we have considered today?
Members indicated agreement.
11:26 Meeting suspended.Previous
Apologies (Scotland) Bill: Stage 2