Justice Committee

Meeting date: Tuesday, April 23, 2013

Official Report 439KB pdf

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Victims and Witnesses (Scotland) Bill: Stage 1

Agenda item 2 is our second evidence-taking session on the Victims and Witnesses (Scotland) Bill. I welcome the first of our two panels: Peter Lockhart from the criminal law committee of the Law Society of Scotland; Murdo MacLeod QC from the Faculty of Advocates; and Professor Alan Miller, chair of the Scottish Human Rights Commission. Thank you for coming and for your written submissions.

I do not want to single you out, Professor Miller, but I am advised that you have to leave at 11 am to give evidence to the Education and Culture Committee. You are a busy bee. As a result, if members have any questions specifically for Professor Miller, they should ask them before 11. Of course, we can if necessary go on a bit longer with the other panellists. This panel will focus on the balance of rights between the victim and the accused, but we are not limited to those issues—heaven forfend I should try to limit members in that way.

With that, I seek questions from members.

Good morning. I should first declare an interest as a member of the Faculty of Advocates and as someone who has worked with Murdo MacLeod in the not-too-distant past. What are the panel’s views on the definition of “victim” in the bill? How should that term be defined?

I should say that if the witnesses look up, I will pick them out. The microphones come on automatically.

The term “victim” has been defined very much in the context of criminal justice. I note that, as far as international human rights are concerned, the definition would be broader than that in the bill and would include victims of human rights breaches that might or might not be the result of criminal offences against them. For example, the commission has been very much involved on behalf of survivors of historical child abuse. Some of those instances amount to criminal activity against residents in care homes; although other instances will not amount to criminal offences, those people will still be victims in the sense that everyone will understand.

My only comment, therefore, is that the definition of “victim” is contextualised in the criminal justice system and is not as broad as the definition under international human rights.

I urge a note of caution with regard to the definition of “victim”. As the faculty’s written submission makes clear, a victim should be called a victim only when a person is found guilty at the end of a trial. That said, I think that under the Criminal Procedure (Scotland) Act 1995, which dictates criminal procedure, the use of the term comes in only at that point.

Beyond saying that great care must be taken in using the term “victim” in an emotive sense, I have no comment to make. I am more interested in the debate on vulnerable witnesses and the provisions that apply to them.

I have no doubt that we will come to that debate.

I endorse my colleagues’ comments and note that the point made by the Faculty of Advocates is good and valid.

As for the definition of “victim”, I have to say that as a solicitor practising at the coalface I would not really want to take on the task of drafting legislation. However, as we say in our submission, it is important that we have a full, clear and unambiguous definition that people can understand.

Does anyone have a supplementary on that?

I have a question for Mr Lockhart on how the bill defines the term “victim”. I acknowledge what you say about not being a bills drafter, but could you or the Law Society provide us with a bit more clarity or certainty about how you think that the bill’s definition of “victim” could be improved?

I am sure that we could attempt that, although I would not like to do it today as it is not an area in which I have practice. We would be happy to work with the Government to try to get a better definition that meets our criteria. The short answer is yes, we could.

We look forward to amendments being lodged from some direction.

I want to focus on the bill’s provisions on vulnerable witnesses. You will be well aware that the bill will extend the categories to which special measures can apply and extend the child witness definition to all those under 18. I would like the panel to explore in detail whether the balance of rights between witnesses and the accused will be properly achieved by the provisions in the bill.

It is perhaps self-evident, but it bears repeating that an inevitable consequence of the adversarial process is an on-going tension between the Crown trying to secure a conviction and the defence trying to secure an acquittal. For years, the alleged victims, complainers or vulnerable witnesses have fallen into the middle ground and have been largely overlooked in the process.

Developments have been far reaching in the past 20 years or so, triggered by a Lord President or Lord Justice General’s practice note in the early 1990s, which suggested, for example, that wigs and gowns should be taken off when children give evidence. That was the springboard and the 1995 act sets out the further special measures that are required. Those have been modified over the years, through the Vulnerable Witnesses (Scotland) Act 2004 and so forth.

Of course, there are mandatory special measures for children, the continuation of which the faculty agrees with. The faculty also agrees with the proposal that the age of a child should go up to 18, in accordance with the United Nations age of majority and many other jurisdictions, and because in certain crimes, such as human trafficking, it is obligatory. That mirrors Lord Carloway’s proposal for accused people: he suggests that the rights that are afforded to children be extended to those up to the age of 18.

However, the current provisions draw a line there and stipulate that an application has to be made for special measures to be applied to other witnesses. Currently, judges study carefully the factors in those applications in determining whether that is appropriate. One of the factors, I have to concede, is the nature and circumstances of the alleged offence, but there are other factors such as the nature of evidence that witnesses are likely to give, the relationship between the accused and the complainer or alleged victim and so forth. It is a careful exercise that is carried out by the judge.

In my experience—Peter Lockhart will be able to confirm the experience at his coalface—it is routine for such applications to be granted. The defence looks carefully at them, takes instructions from its client and routinely, 90 to 95 per cent of the time, they go through on the nod, as it were. The question is whether the measures should be mandatory.

I may be wrong about this—I am sure that the committee will tell me if I am—but I have not seen any evidence to suggest that the current system, whereby the judge makes that determination, is not working. I think that it is estimated that these special measures will be automatically available to 18,000 witnesses, which we are concerned about. The reason for that concern, which is self-evident, is that the interests of justice, in terms of a fair trial for the accused and of allowing the jury to assess a witness’s demeanour—a very important function—are greatly assisted by having the witness present in a courtroom. That should always remain the presumption, in our opinion, and should be departed from only when a judge says so or in response to an application having been made.

In short, we are not satisfied that there is enough information or evidence to necessitate a departure from that test at present.

I agree with all of that. Again, I am not entirely sure why the provision is being extended to domestic abuse and stalking cases, for example. Under the present legislation, if there is fear and distress on the part of the witness, there is vulnerability, and measures would be put in place. My experience is that in some, although not all, domestic abuse cases, applications are made by the Crown in relation to either the complainer or, for example, children who will be giving evidence. I would say that, in my experience, almost 98 per cent are granted. I cannot think of a single example in which an application has been placed before the court and has been refused. If that is the case, I wonder why we have to extend the provision.

It is not entirely clear to me how the proposal will work, from a practical point of view. I presume that, if it is automatic, there would be no need to lodge an application or a notification.

One of the difficulties that exist at the moment—I have seen this in quite a few domestic cases—is that the application will be framed based on information that has been supplied via the Procurator Fiscal Service. There is a statement to explain why there is vulnerability and why special measures are necessary. Sometimes, from the accused’s point of view, damaging points are made in that application that go to the character of the accused, if I can put it that way.

I normally go through the notice with the client. In a recent case, the client said to me, basically, “I am hung, drawn and quartered before the judge has even heard a single witness.” Therefore, if the proposal means that the use of special measures would be automatic and there would be no need to lodge a notice, that might be something that we would welcome.

We welcome very much the fact that there is a right to object. We think that that is an excellent provision. I anticipate that there will be some cases—although not many—in which the use of special measures will become a live issue in a trial, and the defence will raise an objection.

It appears that, increasingly, the Crown is prosecuting domestic abuse cases in the justice of the peace court. I am not convinced that that is necessarily the best forum for that. However, putting that aside, the fact is that some of our JP courts are not equipped to operate television links and other special measures. That might need to be considered.

The Scottish Human Rights Commission broadly supports the bill and recognises that achieving a balance between the rights of witnesses and the rights of the accused is not easy. However, if you take a step back and consider the provisions in the bill from the point of view of the justice system as a whole, you can picture the system as a pyramid. The bottom two corners of the pyramid are the right of the accused to a fair trial, and the public interest in effective investigations and prosecutions and in the rights of victims and witnesses in that process being properly addressed. The apex of the pyramid is an independent and impartial judiciary, on whose ability we rely almost entirely to ensure that that balance is struck on a case-by-case basis.

My suggestion, therefore, is that you should ensure that you are satisfied that there is nothing in the bill that undermines the role of the court and its capacity to make decisions on cases in a way that will strike that balance. Ensuring that there is the capacity to object and for a hearing to take place when an application is made is a critical way in which the bill can ensure that that balance is maintained.

10:15

Murdo MacLeod and Peter Lockhart said that 95 or 98 per cent of applications were granted. Women’s Aid argues that if that is the case, witnesses have certainty about how they will be handled as they go into the court process. It argues in favour of the automatic right to special measures. Victim Support Scotland has said that its “greatest concern” is the right to object; it is very worried about that. Do we want to consider that issue further?

You have just taken up John Lamont’s supplementary question. That does not matter—he has waived his right. He had to, as you have made the point. Who wants to deal with the concerns of the victims organisations?

The faculty is fully aware of victims’ concerns, which were expressed very thoroughly in their responses. The faculty has gone further than other organisations in suggesting that consideration be given to further representation for victims in particular instances, such as when there is a request to look through their medical records. Currently, victims have no way of participating in that process. On the matter of section 275 of the 1995 act and applications to explore sexual history, the faculty suggested that consideration be given to introducing the participation of victims.

On Alison McInnes’s primary point about objections, the Government has perhaps got itself into a bit of a pickle. David Harvie from the Crown Office gave evidence about that. If the measures are mandatory, why should there be a right to object? My answer is that the measures should not be mandatory; that would be a solution to the conundrum. As Alan Miller said, the judge is best placed to adjudicate on the respective submissions and to come up with a subjective decision. There is a right of appeal contained in the objection. That seems to be perfectly sensible. In my respectful submission—although I have given evidence myself and it can be a terrifying ordeal—we should have faith in judges to make those decisions, rather than make the measures mandatory. We are talking about 18,000 witnesses who will be given the automatic right to those measures. In our submission that right should not be automatic, but left to the judge.

We can all think of people who would benefit from the special measures. Can you help us by giving any examples from real life in which objections have been made and upheld and people have had to give evidence in open court without any special measures?

I have no examples from my personal knowledge. However, as Peter Lockhart suggests, up to 98 per cent of the time the applications go through anyway. The point is one of principle, or rather, a little more than that. There might be a case in which the application is not well founded; it is up to the judge to determine that.

With child witnesses, it is self-evident that the child is a child. One is not looking at the class of case; that is just one of the factors that a judge should be entitled to look at. If we extend that objective test—that the child is a child—to classes of crime we will stray into a difficult area. There can be many classes of crime in which a victim, or an alleged victim, or a witness, is quite capable of giving evidence. Another way of looking at the issue is that in some cases applications are not made. That is presumably so for quite a few of the cases. We are wary therefore of giving a blanket right to the proposed measure.

The matter of cases held in camera has not been raised. As I understand it, that can also protect the accused. Does that have any interaction or relevance here—can holding cases in camera assist the accused, if I may put it like that?

As we mention in our submission, we need to be careful about going down the route of conducting trials in private. There are occasions when that needs to be done, but the judge should make the decision. The difficulty is that, particularly in domestic cases, there might be family members who are caught up in the case—not in the sense that they are witnesses, but because there is a domestic situation within the family—who will want to be able to hear and see the evidence, so I have concerns about that.

The other factor—again, we mention it in our submission—is that, with the use of videolinks, we wonder why it would be necessary to conduct the trial in private, because in effect the witness is not in court and does not know who is there. However, I am not sure that that necessarily answers your question.

I want to pick up a point that Murdo MacLeod made. From a defence point of view, I cannot give you a specific example of a case in which I or another practitioner in the court that I practise in has been successful in challenging the use of special measures. That is very rare. Although we welcome the right to object, I envisage that it will be difficult to satisfy a judge with a valid objection, particularly where the case falls into one of the mandatory categories. I am not sure what type of argument could be put forward to challenge the use of special measures.

Presumably, you might say that the case is not a domestic abuse case. Would that not be an example? Domestic abuse cases are a mandatory category, so if you believed that the case was not a domestic abuse case, that could be an argument.

Well, yes. That is an interesting point. That might be an argument. I do not know. Domestic abuse now covers quite a wide area.

I just thought that I would throw that out.

Yes. That is a possibility.

It is obvious what a child is, but what a certain case is might not be obvious to one of the parties.

Roddy Campbell has a question about objections.

It is just a technical point.

Convener, may I make a point on the issue of victims?

Yes. I beg your pardon.

It is not really for the faculty to say, but I wonder whether the process that is envisaged in the bill might build up expectations on the part of vulnerable witnesses and complainers. They will hear that special measures will be mandatorily granted to them, but an objection might come in later on and the thing will be ventilated again. Might it not be better to have an application and deal with it there and then? At least the victim will then know where they stand.

Thank you for that.

Murdo MacLeod touched on where I was going, which is the timing of the vulnerable witness notice and any objection. Will you clarify how late in the process a vulnerable witness notice could be served and how late in the process an objection could be made? A concern that we have heard from the victims organisations is that victims would want clarity as early as possible so that they do not have things hanging over them and do not suddenly find at the last minute that the position has changed. Will you comment on that?

Perhaps the obvious comment is that the matter should be dealt with as soon as possible for everyone’s sake so that everyone knows where they stand. There are provisions on that, however. I do not have them to hand, but in the statute there is a seven-day period for the matter to be determined once the application is in. Lord Carloway, in the case of Dunn, suggested that the defence has the opportunity to write in to raise an objection, under the current process, once it becomes aware that it is unfolding, as it were. However, the sooner it is done, the better.

I agree. In general terms, in summary cases, the Crown would usually have its vulnerable witness notice in by the intermediate diet, which is four weeks before the trial, so the matter is dealt with at a fairly early stage. In solemn cases, we would certainly expect the notice to be in before the first diet.

The difficulty that the Crown faces is that, under the current legislation, it will usually write to or have contact with the witnesses and ask whether they want any special measures. They do not always respond right away, and occasionally it happens that an application comes in fairly late in the process. For example, the victims, witnesses or complainers—whatever we want to call them—may have moved, or they may have lost contact with the fiscal’s office. Obviously, if the measures were mandatory that would not apply because we would know at the outset that witness A, B or C had mandatory special measures and so it could be dealt with early doors.

Good morning, gentlemen. I want to follow on from Alison McInnes’s first question, about the vulnerable witnesses provision. We have heard from previous panels that the vulnerable witnesses provision should perhaps be extended to civil cases and children’s hearings. Do you have any thoughts on that issue?

I have no particular comment about that, but I suppose that the same principle applies in other adversarial cases. One would hope that that would be the case in fatal accident inquiries and in particular public inquiries, which are more inquisitorial than adversarial. Certainly in my experience of a lengthy public inquiry, strenuous efforts were made to ensure that the provision of evidence was made as easy as possible for witnesses. However, I am afraid that I am not an expert on civil procedure.

I am the same; I am here from the Law Society of Scotland’s criminal legal aid committee and I am a criminal defence practitioner. However, logically we would anticipate that a witness in a civil case may be equally fearful of and stressed by giving evidence, particularly in children’s panels and referrals. Logically, there is a good argument for extending the provision but, as I said, I do not practise in that area.

That is a very good question. The commission’s experience in dealing with the frustration of the victims of historical child abuse—some of whom have had contact with the criminal system and some of whom have had contact with the civil system—is that they have found great problems in the system adapting to their situation in the way that it should. Very often their experience is that neither criminal nor civil processes are particularly fit for purpose for bringing in very vulnerable victims or witnesses to participate. It has to be recognised that, even if we take all the special measures, the process is still very fraught for someone to be exposed in the way that they will inevitably be, no matter what measures are brought into being.

Therefore, we need to look more broadly at other forms of access to justice for victims and not only in the criminal justice process or civil proceedings. That can include reparation, restitution, different forms of alternative dispute resolution or conciliation. We have to look at the system as a whole and make it fit with the circumstances of a particular individual, rather than try to shoehorn them into the system better than has been the case until now, because that is difficult. I do not think that there will ever be a perfect solution because of the different interests that are at play such as the rights of the accused and the role of the judge. We must look more broadly at access to justice for victims.

I appreciate your answers as a layperson who does not have as much knowledge about the law as you do. However, we are considering the bill and other panels have said that the provision should be extended.

I want to follow up what Alison McInnes said regarding the right to object. I come to the issue from the perspective of the public, as a punter, or whatever you want to call it. You say that the decision should be up to the judge but, when we speak to witnesses or victims—this is a terrible thing to say—many of them do not have much faith, not in certain judges or sheriffs but in the system as a whole.

I was interested in what was said when we talked about the vulnerable witnesses application, which Roderick Campbell teased out a bit. You said that that should be dealt with as soon as possible, that there is a seven-day notice period and that an objection could go in four weeks before the trial, although lawyers could also put an objection in whenever they feel the time is right, for example if evidence comes forward or their client wishes it. How would that work? Would it be possible for people to say that they are not going to object and then, two days before the trial, there is an objection? Could that happen?

10:30

The short answer is yes. The bill allows for objection at any stage. Indeed, my reading of the bill is that it allows for objection even once the trial has commenced, although that would be an unusual situation. I cannot think off the top of my head of a practical example to give you. The important principle is that there should be a right to object. That is because there may be quite a gap, particularly in domestic situations, between the time of the alleged offence, police involvement and first appearance in court, and the trial. There might be a change in circumstances during that time that puts a different perspective on matters and renders the special measures unreasonable. I think that the principle is correct; we will have to wait and see how that will work in practice.

Let us assume for a moment that an objection is made and that a sheriff upholds that objection. Obviously, that might be subject to appeal by the Crown. Sandra White suggested that some sheriffs may grant the objection and some may be agin it. However, there is judicial training; presumably those questions about the judicial system could be raised then. There are other mechanisms in place and if there was a problem with the particular judge or sheriff, that could be dealt with.

Under section 271D, which is not going to be revoked, the judge can review the situation as it progresses. One has to have faith in judges and in the legal system. As Peter Lockhart says, there is now extensive judicial training for the fiscal service; that also applies to defence practitioners to an extent.

Sometimes we can become very concerned with local or national ways of dealing with these problems. That is quite right; one of the functions of our Scottish Parliament is to oversee the criminal justice system in Scotland. However, there is broader international experience on the matter. I will read out to you the relevant United Nations declaration, which comes from the experience of a whole range of different systems. The declaration says that measures to help victims are very positive and are needed but should be facilitated by

“Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system”.

In other words, that suggests that there has to be a balance. Victims’ rights must be safeguarded at appropriate stages in the proceedings, but in relationship with the other interests that are at stake within a criminal justice system—the right to a fair trial, effective investigation and so on. Anything that undermines the role of the judge and the court in a specific case with all the facts in front of them is inconsistent with international best practice.

My question is to Mr MacLeod, on the use of a TV link to give evidence as one of the special measures. You suggested in your written evidence that research shows that evidence given by TV link is more difficult to assess and does not give the same impression in court compared with evidence from someone who is physically in the courtroom. Could you give us more information about that research, particularly in relation to the bill? The research is relevant also to the Government’s proposals to close some of Scotland’s courts; the proposal to use a TV link would have a wider impact than simply on the bill.

I am afraid that I cannot give you much more about that research. Essentially, that information is anecdotal. One of the members of the faculty recalled being told by instructors who were talking about the provision of a TV link that there were difficulties with the assessment of witnesses. I will certainly see whether we can firm that up a bit.

However, it is obvious from my submission that, all things being equal, it is better to see a witness giving evidence. For example, the issue might be whether the accused restrained a witness in a particular way, so it would clearly be better for the jury to be able to see the size of the witness, which they would be able to do only from having the witness in court. In my experience, there have also been problems with the audibility of witnesses giving evidence from the live-link centre. Another example might be the assessment of demeanour, because a witness’s look to the side in some remote room might look suspicious in some way, although it might in fact be quite innocent.

Of course, the live link can be very difficult for lawyers. If you ask any criminal lawyer, or any other lawyer involved in examining or cross-examining witnesses by means of a live link, they will tell you that it is extremely difficult to build a rapport with the witness. In my submission, it must be better in terms of the ability of the practitioner to question the witness and in terms of the jury’s assessment of a witness’s demeanour for the witness to be present in court. There is of course the counterbalance to that, which is the right of the witness to give TV-link evidence, which will be granted in the right circumstances. However, in my submission, the best evidence is evidence given in court.

I agree with that view. Having done the job for more than 30 years, I know that the witness’s body language, even when they come into the court, very much sets the tone. In many trials in which I have been involved, I have led a defence witness whose body language was not good and I have thought, “Oh, dear.” For example, if I was not here today and you were looking at me through a television link, you would find it a different experience.

The other point that I would make is that—

We are reading your body language very carefully—all of you.

I am sure you are.

The other thing that I would venture to suggest is that, although we have the technology, in practical terms and on a day-to-day basis, there are quite often problems with it. For example, in the smaller courts—I practise in Ayr, where the technology is not being used every day—when a trial is using a videolink, there can be problems with the link and perhaps the technical person who operates the link is off ill and somebody else comes in to do it who does not have the same experience. I therefore think that we must improve not only the technology but the training of the people who operate the system in our courts, which I think is sometimes an issue.

I found interesting Mr MacLeod’s comment that a videolink is not always in the witness’s interest, because a look might be misinterpreted.

There are other examples of that. For example, a witness might not like being filmed, particularly if the very nature of the crime involved filming, or the witness may prefer to see the person who is asking them questions rather than just hear their disembodied voice. Such factors would be taken into account, though, in the decision whether to grant permission for the link in the first place.

Good morning, panel. My question is for Professor Miller first and foremost. It is about oral representations by victims and families to the Parole Board for Scotland and the right of an accused to challenge them. How should that be facilitated?

Thanks very much for the question, because that issue is one of the commission’s concerns about the bill, which we otherwise broadly welcome. It goes back to the point that I tried to make at the beginning of the meeting, which is that it is very important that the independent and impartial sheriff, judge or Parole Board is not fettered by not being able to look at the facts of a case independently and decide for themselves what weight to give to different forms of representation that are made to them.

When a prisoner becomes eligible for temporary release or release, it is quite appropriate for information to be passed to victims and for them to make representations about their concerns or perspective. That should be part of the decision on conditions of release or on release at all. In order for the Parole Board or the appropriate body to determine how much weight to give to that information, and in order to give the other party—the prisoner in this case—the right to respond to the concerns that have been raised, which may or may not be well based, it is important that all the facts are made available to whoever is going to make the decision. If I were in your shoes, I would want some assurance from the bill and from the Parole Board—from which you will be hearing, I think—as to how to ensure a level playing field and equality of arms between the prisoner and the victim in the decision that must be made.

I agree in particular with Professor Miller’s statement that there is scope for an accused to be unfairly prejudiced by information being passed over to the Parole Board or another organisation without their having the opportunity to respond to or perhaps challenge that information.

There are a couple of areas that I wanted to discuss with you that have not so far been covered. The bill contains a provision for certain information to be given to victims or witnesses as of right. There is a section that sets out what that information might include. Are the witnesses happy with the categories of information that would be given to victims and witnesses? Is there any information that you would wish to exclude from or add to that list? I am referring to section 3(6), on page 3 of the bill.

I had the opportunity to read David Harvie’s evidence to the committee on the matter. As far as I understood what he said, all the information as specified in paragraphs (a) to (g) of section 3(6) is disclosed by the Crown, in any event, to the respective and relevant witnesses. The faculty has no great concern about that.

The broad difficulty in having too much interaction between the prosecution and its witnesses is that the independence of the prosecution is compromised. Although we are not saying that disclosure of the facts is particularly controversial, we are concerned about the possibility—as is envisaged in the European directive—that witnesses or complainers could essentially appeal a decision or seek for it to be reviewed, which puts pressure on the independent prosecutor.

Having said that, we have no inherent difficulty with the measures in the bill.

I do not think that that measure is in the bill—it is something that has been proposed.

It is not in the bill, fortunately, no.

I do not think that it is in the bill, but I may be wrong.

It is not.

A witness suggested that people should have the right to seek a review.

Yes. I read the responses of some organisations. Ms McInnes and others are keen for such provisions to be in place. We hope that there is not a drift towards that in due course.

10:45

From the commission’s point of view, I have no issue at all with any of the paragraphs—(a) to (h)—of section 3(6). Before I became chair of the commission I ran a law practice for 15 years in Castlemilk, where I gave advice not only to those charged with crimes but to victims of crimes who had contact with the procurator fiscal system. I remember the frustration that many victims experienced because the information that will be provided under paragraphs (a) and (b) was not provided as a matter of course. People had experienced a bad situation and had co-operated with the police, but they were left hanging, without knowing what was happening. If no proceedings were taken, they felt that that was a reflection on their integrity or credibility, although there might have been good legal reasons why the evidence was insufficient.

I very much support and welcome paragraphs (a) and (b) of section 3(6)—the state has an obligation in that regard and should do better—and I have no issue with any of the other matters being part of the information flow. I understand what Murdo MacLeod said. There is a line that cannot be crossed, but what is envisaged can be done without crossing the line.

But people should not have the right to seek a review.

I do not think that the Law Society has any difficulty with paragraphs (a) to (h) of section 3(6). Like Professor Miller, I often find people coming into my office to seek information. That still happens, which clearly indicates that there is a need.

The devil will be in the detail, and my concern is about how the provisions will work in practice. As we said in our paper, we are moving to a single witness complaint situation, and we can envisage practical difficulties. If someone wanders into the procurator fiscal’s office in Ayr and says, “I want to know what’s happened to my case,” will the desk clerk have to say, “Well, your case has been dropped, because we didn’t believe you, frankly,” or will it have to go back to a depute? Will the person have to go to the police station? The bill covers the courts too, so what happens when someone wanders into the sheriff clerk’s office in Ayr and asks what has happened with their case?

There will be practical difficulties. However, a witness—and I use the word carefully—in the proceedings should be entitled to the information that is set out in section 3(6). They should be aware of what is going on. If they have made the effort to give information to the police that has resulted in criminal proceedings, they are entitled to that information, in my view. As we said, the one caveat might be that we need to define slightly better who can have that information and who cannot. For example, if the police are investigating a criminal offence in the high street and they take a statement from a person that is subsequently found to have no evidential value, and the person will not be giving evidence, is there any justification for that person to have the information? I throw that in for the committee to think about.

There are two other areas that I want to cover. At our most recent meeting, there was a bit of a quandary about the notion of victims or witnesses participating in the investigation and proceedings. We were at something of a loss to understand what the inclusion of such a provision in the bill was meant to achieve. Do you have comments on that?

Mr Pearson, are you referring to concerns about the wording of section 1(3)(d)? The paragraph provides that

“a victim or witness should be able to participate effectively in the investigation and proceedings.”

Yes, that is it.

I am not sure why the word “effectively” is in there. If someone is to participate at all, one would hope that their participation would be effective. From my reading of the provision, I can only imagine that it means that people can effectively participate in terms of giving evidence, for example. Of course, that is best achieved if evidence can be given in an easier way. Beyond that, I have no idea what the provision means.

Should we leave it in or would it be safer to take it out?

As I said, I do not know why it is in. There might be a reason, which is lost in all the paperwork.

Should we search for the reason, then?

I think so, yes. Good luck to you.

We might well do that.

Does anyone else want to comment on that?

I take the point. This might be a help or a red herring: in case law over the years the European Court of Human Rights has said that if someone is given a right, including a right to a fair trial in a criminal justice system, it should be a practical and effective right and not just something on paper that does not have much relevance. The provision might just be borrowing that language.

Finally, I invite comment on the reference in the bill to restitution orders and a restitution fund—there is a new idea in that regard. The idea is that if a police officer is subjected to an assault, it will be within the power of the court to decide on a restitution order. I raised with the previous panel whether a conflict of interest would be involved in that, given that the police officer would presumably give evidence for the prosecution and that the police may benefit at the conclusion of the case. Am I being overly sensitive about the matter?

I think that you are. I have faith that police officers in particular would give evidence truthfully in accordance with the oath that they take. I have a wider point to make about restitution orders, if I may. The question is why they have been confined to police officers. The faculty states in its written submission that although

“many officers face danger on a regular basis, so do others employed in the emergency services”.

For example, I have been involved in cases involving prison officers who have been traumatised by being badly assaulted in prison riots. In addition, hospital staff come in for a lot of abuse and assault, as do others. Although this is not in our written submission and police officers are not in a different category otherwise, it should be borne in mind that police officers are trained, as perhaps are prison officers, in how to respond to violence. It is part of their occupation, as it were, that they will face danger from time to time, but that is not the case for other occupations. Although this is not strictly within our remit, we thought that it might have been better or fairer to have rolled out restitution orders, if they are coming in, to other occupations.

Would that not cause some issues with other emergency services, such as the ambulance and fire services? We already have special legislation to deal with assaults against hospital staff, for example. I do not know where you would end the list in that regard.

Why have a list at all? That would be my answer. Compensation orders work and are routinely granted. If it is going to be impossible to draw up a list, perhaps there is no need for a list at all.

Graeme Pearson’s point is a very interesting one, which I had not thought of.

I am now sorry that I raised it.

But it is a valid point. I know that sometimes in a criminal trial I may be aware that, for example, the victim has a current claim for criminal injuries compensation. I may well say to such a witness, “You have a financial interest in this man being convicted. Is that correct?” I am sure that professional police officers would be above all that, but your point is well made.

My general observations on the matter would be very much in tune with what Murdo MacLeod said about it. The police do a fantastic job, but there is a danger with restitution orders. We already have compensation orders and sheriffs impose them regularly. If there was evidence that compensation orders were not being used and that that was felt to be a problem, that could be a matter for the sentencing council and judicial training. However, that is not my experience.

The other difficulty, to be quite blunt, is “the punter”, to use Sandra White’s expression. The punter will not understand the difference between a compensation order, a restitution order and a victim surcharge. At the end of the day, if the punter is fined £500, as far as he is concerned he is paying £500. Whether that is made up of fines, restitution orders or whatever will be lost on him. Another difficulty will be a practical one from the collection point of view. I think that there may be problems with that.

I very much believe in compensation orders and I think that they work. It is a good idea for someone to have to pay for their misdemeanours, particularly if that brings some restitution where there is criminal damage or personal injury. We therefore already have legislation in force and we have compensation orders. If they are not working, the question is why not.

I want to move on to the victim surcharge. My question is particularly aimed at Professor Miller. Section 22 provides for a victim surcharge and inserts into the 1995 act a new section 253F(2), which says:

“Except in such circumstances as may be prescribed by regulations by the Scottish Ministers, the court, in addition to dealing with P in any other way, must order P to pay a victim surcharge of such amount as may be so prescribed.”

Professor Miller, you are obviously concerned about the impact on the families of offenders of this provision, but the Government might be able to deal with that in the regulations. Perhaps you could comment on your concerns and how you think the victim surcharge fund should operate.

Yes. The concern that we put in our submission was about getting blood out of a stone. If someone is convicted, they can be fined or ordered to pay restitution or a surcharge, but such individuals are often not of great financial means in the first place. Many of them come from families that do not have any great financial means either. You would want to ensure that the relevant court takes into account the impact on those families, particularly on the children, as I expect it would do. The particular circumstances of the offender and the offender’s family background should be taken into account by the court when it is deciding what sort of financial penalty should be imposed and what the consequences of that might be on the offender and on those members of their family who had nothing whatever to do with the crime that was committed. I would hope that the relevant judge or sheriff would weigh up that sort of thing.

Does that not happen already?

Yes.

That happens already, convener, but the Faculty of Advocates has difficulty with the proposal, which, as we read it, says that the court “must” order the payment of a victim surcharge. The judge will have no discretion whereas they did previously.

Furthermore, the payment must be for a prescribed amount, whereas—this is mentioned in our written submission—by virtue of section 211(7) of the 1995 act, the judge or sentencer is statutorily obliged to take into account the means of the offender before imposing a fine. We are therefore concerned that the measure is regressive and potentially very unfair.

So the line

“Except in such circumstances as may be prescribed by regulations”

is not helpful.

We do not know what those circumstances might be.

No, but you have put a marker down. It would have to be tested.

That seems to be it. Do you wish to add anything that we might have missed? We are two minutes away from Professor Miller’s deadline but, as he does not have anything to add, we will let him go to his next committee.

Thank you.

I have a general observation that we put into our written submission. The Law Society endorses much of what is in the bill but, as I said earlier, the devil will be in the detail and how it works in practice. I suspect that there will be funding issues and that those will have to be considered carefully. It would be unfortunate if victims and witnesses had expectations that could not be fulfilled due to current financial constraints. There is a danger of that.

Can you be more specific about the funding issues? There is, of course, a financial memorandum to every bill.

A lot of the burden will fall on the Procurator Fiscal Service and, to an extent, the police and the Scottish Court Service. All their budgets are currently under tight review. The bill does give an indication of the financial cost—I think that there was a figure of on-going costs of around £2 million, which is not an inconsiderable sum of money. One wonders where that will come from. Will it have to come out of other budgets? As I said, that is just a general point.

We can raise that point with the cabinet secretary. Thank you both very much for your evidence; it is very useful. I will give everyone a five-minute break.

10:59 Meeting suspended.

11:05 On resuming—

We are back in business and we move on to the second panel of witnesses: Colin McConnell, who is chief executive of the Scottish Prison Service and a regular visitor; John Watt, who is chair of the Parole Board for Scotland; and Heather Baillie, who is vice chair of the Parole Board. I know that you were listening to the previous evidence. Thank you for your submissions.

The focus of this panel is on considering victims’ rights in relation to the release of offenders, but we are not limited to just that aspect of the bill. The committee knows what your remits are and the questions will be within those remits.

I have a question for the Parole Board people. If you listened to the first panel, you will be aware of a question that I posed earlier. How do you envisage the representations that victims and families will make to you working in practice? Do you intend to share that information with the individual who is being referred to?

Yes. How we expect the process to work is that a member of the board will interview the victim, find out what they have to say, record that in writing and then check it with them. That information will thereafter form part of the dossier that goes to the prisoner. Of course, we will ensure that it has no personal information—addresses, phone numbers and the like. It will go to the prisoner, who will be able to comment on it at any parole hearing. Prisoners will have ample opportunity to know and understand what the victim is saying before the tribunal.

That is very reassuring.

Good morning, panel. Thank you for coming along. My question is about the practicalities of maintaining information and passing it to victims or witnesses who have been involved in a trial. It is about the Prison Service’s ability to maintain links with those who are designated to receive such information and to keep up to date with the current process with a prisoner.

Do you feel that you have effective systems that will allow you to pass on the type of information that the bill would demand? Would that information include circumstances in which prisoners are released on day release, the release of prisoners to go outwith the prison for further education or whatever and escapes?

I am content that the systems that we have are sophisticated enough and reliable enough to cope in the current circumstances and with the provisions that are set out in the bill.

As for the proposed changes, as I set out in our submission, we expect more victims to register with the victim notification scheme, so the demands on the SPS will undoubtedly increase. However, I am confident that we have the resources to ensure that that will work, given the projections. As a witness said earlier, we will have to wait for the test of time, but I am confident at this stage that we could cope with the demand that those changes could bring.

Would that include day release and training for freedom and so on?

In so far as that is provided for in the bill, yes—I am confident that we can cope with that.

In its submission, the Parole Board talks about the difficulties around raising

“false expectations on behalf of the victim that their representations will influence the ... decision on whether or not to release”

life sentence offenders when the test is

“protection of the public”.

Do you have any practical advice that can be given to try to deal with that issue of raising false expectations?

The problem lies in the basis for the Parole Board’s decision, which involves an assessment of risk to the public. The input of victims of crime will tend to relate more to the original crime and the sentence. If they have something to say that bears on risk, that will be taken into account. However, victims might make their representations in the expectation that they will prevent someone from being released. We have to deal with that by ensuring that, when they are interviewed by a member of the board, they are given a full explanation of what can and cannot be taken into account. I doubt that we could do anything in advance of that point. The information would probably be irrelevant until the victim had an opportunity to speak to someone who knows the parole process and can answer their questions.

That comes to the nub of the issue. Obviously, as Roderick Campbell said, expectations might be too high, and you have explained that the Parole Board is there to assess the risk to the public. You said that, when the victim speaks to the Parole Board, a full explanation should be given to them. That would be done on an individual basis. Should a full explanation be written in guidelines in the bill, so people can find out what the position is, or are the issues so individual that we could not put guidelines in the bill?

I suspect that the advice will depend very much on the circumstances of an individual case and the nature and quality of the information that a victim can give. It would be extremely difficult to write comprehensive guidance. It would have to be so comprehensive that it would be incomprehensible—that is an oxymoron, but you know what I mean.

In that case, every victim who appears before the Parole Board will be given different advice. That could lead to one witness giving wrong advice to a witness in another case. How do you square that circle for members of the public who are witnesses?

As I said, the advice will have to be case specific. I do not know how likely it is that a victim of a crime that was committed 10 or 12 years ago will talk to another victim of another crime that was committed around the same time. I suppose that there might be multiple victims in one case, who would all be seen individually and would have the circumstances in relation to that case explained to them individually. I see no other way of doing it. The advice is case specific.

I take that point.

I think that Graeme Pearson wants to ask a question. Sorry, convener—I am not trying to chair the meeting.

You were, but it is forgivable.

No doubt the Parole Board has a website. Even though many of the decisions are particular and are tailored to the circumstances of the case, I presume that you could put broad guidance on the website that would let people know what to expect. A victim who contacts the Parole Board and thinks that going through the gruesome detail of an event from—in the example that you gave—12 years previously will have some impact on the board’s decision would be frustrated to learn belatedly that that information is not relevant to the decision.

Any such information would have to be in the broadest of terms and would have to be couched in terms of future risk rather than past offending, but that could be done.

The bill’s underlying approach is to empower everyone who participates in the criminal justice system, and information is power. I hope that victims will never need to read your website but, if they do, there will be valuable information on it if you share the approach with them ahead of time. Would that not be a useful way forward?

There is information on the website already, but I am sure that we could enlarge on that.

11:15

When victims are being told that an offender is permanently to be released or released on licence, are they told where that offender will be released? There are dangers both ways: a victim might know that an offender has been released and might see them on the same street, or vigilantes might act if they know where an offender is. If I had been the victim of and the main witness to a really serious crime, such as assault to serious injury, what information would I be given when the offender was released from prison?

If an issue was raised before the Parole Board, the board could impose a licence condition, the terms of which would be advised to the victim. For example, if there is a concern that a particular geographic area would raise the risk for the victim or in the other direction, the Parole Board can and does impose a licence condition that the offender should not enter that geographic area without the supervising officer’s permission.

It is useful to know that. The punter—let us say that I am the punter—would not necessarily know about that if they were just told that the offender was being released.

The issue is raised by victims under the existing scheme from time to time and the Parole Board addresses the situation by way of licence conditions.

At the moment, victims have to raise the issue in their representations. There are times when it is pretty obvious that there will be a problem, and the board can take account of that.

That forms part of the victim notification scheme and the written representation that the victim submits to the tribunal for consideration. The situation can be controlled by licence conditions, breach of which raises the risk of the offender being recalled to custody.

You say that the victim must raise the issue, but can the Parole Board address potential problems off its own bat?

Yes, it can.

It is right that victims and witnesses are given opportunities to make representations. Does the panel believe that prisoners should be able to challenge statements that have been given to the Parole Board?

Yes. If a prisoner thinks that the information provided is inaccurate in some way, it is only fair that they can bring information before the tribunal to challenge that. That is the essence of fairness.

It is important that the victim providing the statement is aware that the statement will be disclosed to the offender when the Parole Board considers the dossier that includes that statement.

It is a difficult balance to strike. Victims know that, if their application is not successful and the Parole Board decides not to impose a licence condition, there might be retribution. I am not saying that that happens, but it is a judgment call for a victim, is it not?

The answer is yes, it is, but the situation can be talked through with a member of the Parole Board. Obviously, there is a limit to how much advice a Parole Board member can give. However, they can at least highlight the difficulties and the issues and, if so advised, victims can then take their own advice.

We can reassure victims that we will impose whatever licence conditions are necessary to manage the risk and that those will be policed. The conditions might concern a curfew, geographical exclusion or having any form of contact with the victim. There are ways to manage the situation. Victims often say, “You can’t guarantee anything,” and we cannot—there is always a risk.

Victim Support Scotland has called for the bill to give all victims of crime the opportunity to give evidence directly to the Parole Board when it considers a release rather than just to a member of the board, which is seen as being an option that is once removed. What problems might that cause, if it were the case?

The board tends to operate on consideration of dossiers. It hears evidence from witnesses only in exceptional circumstances. A tribunal hearing in relation to a life sentence will take place in a small room in a prison, with all that goes with that. If a victim were to attend, they would be in close proximity to the prisoner—again, with all that goes with that. They would be open to a form of cross-examination—we could call it questioning—by the solicitor who was acting for the prisoner or directly by the prisoner. Attending the tribunal to explain their position would expose them to all those things.

It is not the norm to have witnesses there at that point. The chair could permit witnesses to attend, but I believe that that would create a difficult position. I do not know whether the Scottish Prison Service has a view on the matter.

People are in close proximity to each other during the meetings, so I can see difficulties with the idea. Victims who knew that that would be the case might view that as a disincentive to their turning up. I think that it would be more difficult for them to get their account across in that setting. Giving evidence is always difficult. Those of us who have done it realise what a lonely place it is. It is not a nice place to be—Mr Pearson can tell you that.

I hope that we are being kind to you and that you do not feel that you are in a lonely place at the moment, even though you are giving evidence.

This is not a lonely place to be, but a witness box can be, when someone is under examination by a solicitor. With the best will in the world, someone’s message can become distorted. My view is that the best way for someone to set out their position is in writing. I appreciate Victim Support Scotland’s position, but I do not agree with it.

Mr McConnell, do you want to comment from SPS’s perspective?

From an operational perspective, if the proposal were included in legislation, SPS would accommodate it. In most circumstances, it is just about making things work and building in the best protections possible. My only observation is that the proposal would add a level of complexity, but not to an unmanageable extent.

I presume that the increased complexity, as well as being challenging, would have a cost attached to it, because one would need to cite witnesses to come to the prison and would need to make arrangements to manage that process. I am not saying that that means that one would judge that the measure was not desirable; I am just saying that there would be a financial impact.

A cost would be associated with the measure.

As I am talking, I am thinking about the disconnect with criminal proceedings, in which we would probably do our best to keep the victim, the accused and their associates separate. Getting to a point at which we actively put them together—

In a very small room.

Yes. That does not seem to be logical. An expense would be involved but, if the Government decided to act in that way, we would find a way to deal with it.

The hearing would be after a considerable time. If we are talking about people serving life sentences, the consideration of their case for release takes place after the punishment part, and an average punishment part is in excess of 10 years. That would be a factor as well.

Do not go back to the punishment part and the other part, because that left us with scrambled eggs for brains.

I have a practical question, which the Parole Board might be able to answer. When you receive a file concerning the parole of a prisoner who has spent a decade in jail, what practical steps are taken to ensure that the right people are informed that parole is in the offing, so that they can be given the opportunity to give evidence? Are there papers in the file that list the people who, 10 years previously, said that they wanted to be included in the process, or does someone review the file and select people who, in their view, need to be informed? Is there any difficulty in finding those people a decade later?

Victims are registered as part of the existing scheme.

So they apply.

Yes. If they register under part 1, they are advised by the Scottish Prison Service of the decision that has been reached. If they register under part 2, they are given more information. They are told in advance—

I am sorry. When you say part 1, what do you mean?

I mean part 1 of the victim notification scheme.

Does that apply at the time of conviction?

It comes immediately post-conviction. Intimation goes from the fiscal service to the prison, and the prison manages it thereafter. There are two aspects, which relate to the stage of release. Under part 1, an individual can opt to be informed of certain stages of release, and part 2 is an extended version that goes up to parole. In our papers, there will be a victim notification scheme notice that says that the victim has been given an opportunity to make representations to the tribunal. If representations come in, we have up-to-date details from the victim as part of the dossier. That is how it works.

Given the change in approach, although a victim might have decided that they had had enough and thought, “He’s gone into the blue yonder and I want to forget about it,” they might have a different view eight years later. What if they found out by accident that a parole hearing had occurred and they were not informed of it? I know that we cannot manage every outcome, but the question is whether people should be registered in any case so that they are informed as a matter of right, or whether only those who apply to be registered should be informed.

I was just thinking that, if the scheme was mandatory, it could be counterproductive for someone who wanted to forget all about a case.

Indeed. What are the witnesses’ views?

I have not really applied my mind to the issue, but it is difficult to see why people should proactively be drawn back into things that they might want to forget. The rights should lie with the victim rather than the state. If somebody decides after eight, nine or 10 years that they want to become involved, I will not turn them away.

We have run out of questions. It has been a short but extremely helpful session. Sessions do not need to be long to be helpful. Do you wish to add anything that we have not covered?

Not from my point of view.

No.

No.

Thank you for your evidence.