Victims and Witnesses (Scotland) Bill
The next item of business is a debate on motion S4M-08562, in the name of Kenny MacAskill, on the Victims and Witnesses (Scotland) Bill.
I advise the chamber that we are incredibly tight for time. The cabinet secretary has a maximum of 10 minutes.
16:11
I am pleased to open the debate. Much time is spent talking about how our criminal justice system works and rightly so. However, in doing so, we must not leave out the discussion of the needs of those arguably most affected by it—the victims and witnesses of crime.
I thank the members and clerks of both the Justice Committee and the Health and Sport Committee for their work over the past year. Their scrutiny and discussion of the bill have been detailed and considered and resulted in the clarification and enhancement of aspects of the bill. I also thank those who have been involved in the bill’s development. In particular, I thank those organisations and individuals who responded to the consultation, including the victim support organisations, such as Victim Support Scotland and Scottish Women’s Aid, that gave evidence to the committees and provided robust and constructive feedback throughout the bill process, as well as to our justice partners. Most important, I express my gratitude and that of the Minister for Public Health to the victims of crimes and survivors of institutional child abuse. They have shown great strength in sharing their views, knowledge and experiences with us all.
The bill contains provisions to improve support for victims and witnesses and to establish a national confidential forum to receive and listen in confidence to the experiences of adults who were placed in institutional care as children, including experiences of abuse.
I turn first to the elements of the bill focused on our criminal justice system. The central aim of our proposals is to put victims and witnesses at the heart of our justice system and to improve the information and support available to them. The bill will ensure that offenders pay towards the support needed by victims through the introduction of a victims surcharge, to be used to help meet the immediate needs of victims of crime.
The bill will make important improvements to the support available for vulnerable witnesses giving evidence. It will require justice agencies to set and publish standards of service to ensure that victims and witnesses know exactly what to expect when they come into contact with the justice system. Those and other proposals will help ensure that Scotland is compliant with the European Union’s victims rights directive. Earlier this year, the victim support Europe conference was hosted in Edinburgh. That acknowledged the positive progress made in Scotland in meeting the needs of victims and witnesses.
A number of important improvements were made to the bill at stage 2, many of which responded to suggestions raised during the Justice Committee’s stage 1 scrutiny. In response to concerns raised at stage 1, Alison McInnes proposed an amendment providing that an objection should not be possible with regard to those standard special measures that are automatically available to certain categories of vulnerable witness. I gave my support to that. I believe that the provisions and special measures now strike the appropriate balance between the rights of victims and the accused.
The Justice Committee suggested that a reporting mechanism be introduced to ensure accountability with regard to justice organisations meeting the standards of service that will be required to be set out under section 2. We have introduced such a mechanism, requiring organisations not only to reflect on how they have met the standards during the reporting period but to think ahead about how they intend to meet them in the future. We also introduced a requirement for organisations to consult each other in developing their standards to encourage a consistent and joined-up approach.
We introduced a power to pilot alternative formats of victim statements, such as pre-recorded videos, in direct response to calls from victims to consider allowing flexibility in how such statements may be given. I reiterated that commitment today.
Furthermore, we introduced an obligation on the Lord Advocate to make and publish rules about the process for reviewing decisions not to prosecute. That will increase transparency in the justice system and reflects the requirements of article 11 of the EU directive on victims rights.
I turn to those elements of the bill that relate to the establishment of the national confidential forum.
In 2009, the Scottish ministers committed to a pilot forum to test out a model for enabling adults who were placed in institutional care as children to describe their experiences, including, sadly, abuse and neglect. The outcome of that was the time to be heard pilot forum. Provisions in the bill that relate to the NCF are based on that successful pilot.
The NCF will give people who were placed in institutional care as children the opportunity to share their experiences through a confidential, supportive and non-judgmental process. It will help to improve the health and wellbeing of such individuals by offering acknowledgement of their experiences, including experiences of abuse and neglect. Lessons may also be learned from those past experiences to help us to inform current and future childcare policies.
We listened to the views of survivors and stakeholders and welcomed the Health and Sport Committee’s recommendations. At stage 2, the Minister for Public Health proposed amendments that will enhance the scope of the NCF and give more people an opportunity to participate, all of which received cross-party support.
We have extended the eligibility criteria to include 16 and 17-year-olds. We have clarified the definition of institutional care to ensure that a range of care or health services can be included in the eligibility criteria.
We have ensured a balance between the ability of the Mental Welfare Commission and the NCF to produce reports and the retention of confidentiality.
We also recognised the importance of allowing the NCF to operate as soon as possible, and the bill now provides for the appointments process to begin without delay, so that former residents—in particular, ill and older survivors—will be given the opportunity to participate in the NCF from 2014.
Of course, the bill is not, and will not be, the end of the process of reform and improvement. The proposals relevant to the criminal justice system will be implemented in the wider context of the Scottish Government’s making justice work programme, a central objective of which is to improve the experience of victims and witnesses. We will work closely with our partners in the criminal justice system and the third sector to ensure that the provisions are implemented effectively. We will also continue to work to identify non-legislative improvements that can be made.
For too long, victims have been treated and made to feel like bystanders in the criminal justice system. The passage of the bill will mean that more consideration is given to the rights and needs of victims and witnesses of crime and will improve their experience of the system to which they turn to see justice served.
I look forward to hearing members’ views on the bill. I confirm that it is not the end of the journey but the end of a stage on the journey.
I move,
That the Parliament agrees that the Victims and Witnesses (Scotland) Bill be passed.
Before I call the next speaker, I advise Parliament that we are very tight for time. I apologise to the two members who will not be able to be called in the debate and advise other members that speeches will be of three minutes. I also thank the next two opening speakers for cutting their time.
16:19
I thank the clerks of, and the colleagues who remain on, the Justice Committee for the work that they have done and the commitment that they have shown over the past few months in dealing with the bill.
Despite the fact that many of the amendments that we proposed this afternoon were unsuccessful, it is appropriate to thank those who, on behalf of the Parliament, prepared those amendments for the high-quality work that they turned round.
Most of all, I record my thanks to the victims who came forward and shared their experience of the current situation and the system that operates to deliver justice throughout Scotland. There is no doubt that that experience has been a very mixed bag.
As I indicated earlier, the approach that has been taken in the bill was driven largely by a desire to ensure that Scotland fell into step with European directives on victims and witnesses, which is a laudable outcome in itself. However, I think that that approach has meant that there has not been quite enough focus on the needs of victims and witnesses in the light of the reality of their experience in our system. To that extent, I am disappointed at the lack of ambition to deliver on some of the needs that victims and witnesses have been so willing to share with us.
The cabinet secretary has indicated that the ability of services to deliver a uniformity of provision is extremely important for the future, and I agree. However, in evidence to the Justice Committee, it was made very clear by witnesses from the police and other services that, at the moment, they do not have the facilities to deliver the kind of information that is required in a format that witnesses and victims would find acceptable. That is a real worry and concern for the years ahead, as we look to see how we can improve the experience of witnesses. I hope that the cabinet secretary will remember that evidence and take particular account of the need to ensure that systems operate effectively and collaboratively within each service and across services.
We have rehearsed the impact on witnesses and victims of their experience in court. I found it moving to discover that their experience of the court process had an impact that almost matched their experience of the crime and to hear that they did not understand what was happening or the layout of the court, because no one had explained to them the processes that they were to enter into. Despite my experience of nearly four decades, something that had passed me by was the fact that many victims and families find it extremely galling and painful to constantly have to iterate the name of the accused to find out information about the case. There must be a way in which our system can adapt so that it can deal with such details, given the impact that they have on victims, which can remain with them for years.
On victims’ involvement in the victim notification scheme, it became apparent that to receive through the post, out of the blue, an official letter that is written in bureaucratic language and which is necessarily devoid of emotion takes the victim or their family right back to the crime and leaves them at home—often alone—to consider their next steps. In one case, the widow of the deceased in a murder trial was left to make contact with the authorities in the way that was indicated in the letter. She eventually received six letters that identified five named contacts, yet there was still an absence of information. Although we have considered how we can move forward into a brave new world, the cabinet secretary needs to understand that the world in which we exist is far removed from the guidance and the decisions that the Parliament has taken to protect our victims and witnesses.
We have spoken a great deal about the issue and the impact that it has on victims but, from a selfish point of view, the Parliament should be concerned about the range of victims and witnesses who have suffered as a result of the system. The system cannot work if the public do not have the confidence to engage with it. When people who have been victimised are witnesses in court, they are often left denuded of any confidence as citizens. They are left damaged and less able to rejoin the community as fully fledged citizens, and they are certainly less willing to engage with the system or to become involved in it again the future.
All the amendments were lodged with a view to improving the situation—to balancing the rights of the accused with the needs of the victims and witnesses in our system. I hope that the cabinet secretary has taken account of some of the evidence that we have offered through the afternoon and that he will take steps to improve the bill’s contents.
16:25
I welcome the opportunity to speak in the stage 3 debate on the bill, which the Scottish Government introduced as far back as February. The bill provides for certain rights and support for victims and witnesses. To date, the Scottish Parliament has passed no victim-specific legislation, although a number of legislative and non-legislative changes in relation to victims have been made since 1999.
The bill aims to put victims’ interests at the heart of on-going improvements to the justice system and to ensure that witnesses can fulfil their public duty effectively. The bill is welcome as a major step towards achieving those aims.
During scrutiny of the bill, I lodged amendments that were intended to strengthen and improve it. For example, the bill confers a range of rights on victims, yet it fails to define victims. An amendment to define victims was consequently lodged for clarification, but the cabinet secretary was not minded to accept it, although the Law Society of Scotland’s view was that
“A clear definition will be crucial if the Bill is to deliver on its promise—to place victims’ interests at the heart of on-going improvements to the Scottish justice system.”
All parties accept that more could be done to encourage justice organisations to work collaboratively, but the amendment to create a statutory requirement for the police, the Crown and the Scottish Court Service to work together and, crucially, to offer a single point of contact for victims, which was eminently sensible, was also rejected by the cabinet secretary.
The amendment to introduce independent legal advice for victims of serious sexual assault sought to tackle a long-standing concern about the inappropriate use of complainers’ and victims’ health information and other sensitive information in sexual offence trials. We had the opportunity today to address a terrible injustice that only the cabinet secretary and his Government deny exists—the use of such information for the sole purpose of seeking to discredit the victims of rape, attempted rape and other serious offences.
My amendments could have tackled the inappropriate use of such information and put in place a much-needed pilot, which would have cost a mere £20,000. Having a few less adverts and billboards for the white paper could have paid for that.
The bill will have the Scottish Conservatives’ support this evening, but it has glaring omissions, which we can only hope will be rectified in the future.
We move to the open debate. Speeches are to be of three minutes, as previously indicated.
16:28
I am pleased to recognise that section 1 of the bill refers to a victim as someone
“who is or appears to be a victim”.
We must always remember that, until court proceedings are concluded and the case is proven, the prime witness is an alleged victim. They might be a victim to the police and to everybody else but, in court, they are the alleged victim. That is important. We are maintaining the principle of being innocent until proven guilty—the presumption of innocence. The burden of proof is on the Crown and the standard of proof is beyond reasonable doubt.
I welcome the bill, because it goes without saying that victims, alleged victims and witnesses often find what goes on in court mystifying. Although a culture change has occurred and there have been moves to make courts more user friendly, if I can use that expression, that has not been good enough.
I recall, when I was a civil practitioner, being in the criminal court and not knowing what was going on. I saw the procurator fiscal and the defence having a wee chat in the well of the court. The mumblings went on and I presume that plea bargaining was being done in the middle of things. Goodness knows what the public made of that.
It is equally important not only that information is given to someone from the start, when they go to the police station to make a complaint about an alleged offence, right through to the release of the convicted person, but that it is provided in plain English. We in the chamber are also guilty of getting into technospeak, and it is very important that people can understand the information and feel that they can ask for an explanation of what is going on.
I do not think that the notion of having a single point of contact—worthy though it seems to be—is practical. What happens if that single point of contact is ill or on holiday and not available? The idea of developing a hub is good, but the personal touch is always important.
The member is in her final minute.
I accept that there is as much variation among witnesses as there is in the features on our faces, so I find the part of the bill that deals with vulnerable witnesses interesting. Some witnesses can be tough cookies—they will know the inside of court like the back of their hand, possibly better than the judge or the sheriff—so we must not think that all alleged victims or witnesses are sweet little people. However, it is important that we protect those who are by far the majority: the people who never thought that they would be in court but find themselves there giving evidence and find out that it is not like it is on the telly.
I am finished, Presiding Officer—I have done it with time to spare. Thank you.
Many thanks for that.
16:31
People can find court proceedings stressful at the best of times without having to recount in intensive detail not only the crimes that they may have been the victim of or a witness to but other information about their lives past and present, which is sometimes of questionable relevance as evidence.
Of course, the courts need to establish the truth, and not all witnesses and victims tell the whole truth and nothing but the truth. However, for the many who do, questioning can seem like an unwarranted intrusion on their private lives and an unjustified attack on their character. Yet, while defendants have lawyers to advise them and give them significant support and the prosecution has extensive resources at its disposal, victims and witnesses are too often left out in the cold. Limited advice and support is available to them, but they lack someone to speak up specifically and solely for their interests in the court proceedings.
As amendments 1 and 2, in the name of Elaine Murray, highlighted, we ought to ensure that our legislation is sensitive to the needs, rights and wishes of child victims and witnesses. The welfare of the child should be paramount in setting standards of service for child victims and witnesses.
There should be guidance on the circumstances in which sensitive personal information of victims of sexual offences can be disclosed in court, and legal advice should be made available to victims in such circumstances. Victims and witnesses should be consulted before regulations that may affect them are changed. Victims should be able to choose how they are told about the prisoner’s eligibility for release and the outcome, and they should get support to help them to cope with the news rather than having to experience the shock that can result from a letter landing on the doormat. We should give victims and witnesses the chance, if they wish, to speak directly to the offender via videolink ahead of release, at least in cases of life imprisonment.
We on the Labour side of the chamber welcome the bill, but we regret that it has become a missed opportunity. Even though the cabinet secretary has accepted one of Labour’s amendments today, the bill could have been so much better if he, and his colleagues on the committee at stage 2, had been more willing to accept suggestions from other parties, which were often based on the wishes and suggested improvements that were expressed by victims and organisations representing children and young people.
That said, after six and a half years we finally have legislation on the issue from the Government that, while not as ambitious as it could have been, is still an improvement. On that basis, despite my reservations, I will support the bill.
16:34
I refer members to my declaration in the register of members’ interests that I am a member of the Faculty of Advocates.
It seems a long while ago since we embarked on scrutiny of the bill, which responds to a very real need to improve the lot of victims and witnesses in the criminal justice system. We need to recognise that the impact of crime is deeply stressful in itself without the justice system compounding that experience. The bill serves a useful purpose, as it not only takes account of the EU directive but goes beyond it.
In the short time available, I will make a few points. More information for victims is a must. They cannot understand the process if they do not have information. The bill is certainly a step forward in that respect, although with the caveat that any online hub should not replace the human touch and that vital face-to-face support that victims need at what is a stressful time.
On decisions not to prosecute, since stage 1 we have had a Crown Office review, which was perhaps encouraged by the European directive and which has given rise to the amendment that was made at stage 2 to enable victims to request a review, with an obligation on the Lord Advocate to set and publish procedural rules for conducting such reviews. That is a step forward, but it would be helpful if the Government could advise on the timetable for the publication of those rules.
On automatic special measures, at stage 1 there were concerns that extending the right to special measures was in conflict with allowing a right to object to their use. At stage 2, we sought to differentiate between standard and non-standard special measures, preserving a right to object to the latter, which strikes me as the right balance.
The cabinet secretary has outlined an approach to the victim surcharge that might be described as testing the waters, as it will apply first only to cases that result in a fine. It seems sensible to me to give the Government flexibility to respond to changing circumstances and to learn from experience. One issue that needs time for consideration is the interaction between victim surcharge orders and compensation and restitution orders.
Earlier, we debated the proposal on legal advice for victims in relation to sexual offences. At stage 2, the Government’s view was that such a measure would result in a major innovation in the law with wide implications. I accept that, and Parliament rejected the amendments on that today, but I cannot but think that the issue will certainly re-emerge in future, and that might benefit from up-to-date research and inquiry.
The bill is an important addition to the changing framework of justice in Scotland and will, I hope, provide support for victims and witnesses while balancing the rights of the accused to a fair trial. The aim must be to improve the experience of those who, through no fault of their own, are involved in a system that might seem overwhelming. David McKenna of Victim Support Scotland said in evidence:
“There is a widespread sense that the justice system does not provide recognition of the individual’s experience and does not demonstrate respect or treat the individual with dignity.”—[Official Report, Justice Committee, 16 April 2013; c 2589.]
That needs to be a thing of the past.
16:37
It is important to remember that crimes are not simply statistics and that, behind every one, there is a victim whom we have a responsibility to protect. Although in Scotland we are fortunate to have a system of support for victims and witnesses, it became crystal clear during the bill process that there is much more to be done to ensure that victims are treated with dignity and respect and given proper support and protection. The passing of the bill will enhance the rights of victims of crime and of those who witness such harm. In addition, the national confidential forum will address the needs of those who have suffered historical abuse.
Rightly, much of the focus throughout the bill process has been on delivering improvements for the most vulnerable in our society. At stage 1, there was dismay among victims and those who speak for them about the proposal to allow objections to the use of standard special measures, which are existing safeguards that allow children and vulnerable witnesses to give evidence without appearing in the courtroom. Victims organisations argued that the proposal would undermine all the other provisions and rights in the bill, which was a pretty damning verdict. I was therefore pleased to secure an amendment at stage 2 that means that those individuals’ rights will not be eroded, and I am grateful to the cabinet secretary for his support on that.
Given that the bill seeks to ensure that the system works better for victims and that Scotland complies with the relevant EU directive, I considered the initial omission of restorative justice to be significant. Again, I lodged an amendment at stage 2 to that effect, and I am grateful to the cabinet secretary for his support on that and for his amendment on the issue at stage 3. Over the years, Parliament has increasingly recognised that restorative justice services can in the right circumstances assist victims to overcome their experience, achieve a greater understanding of why they were a victim and have an opportunity to receive a genuine apology. In turn, it can inspire those who have caused harm to reflect on their actions and take personal responsibility. Some excellent restorative justice services already operate, but I believe that they have too often developed in a piecemeal fashion. I hope that the inclusion of the section on restorative justice will highlight their value and instil greater consistency in the system.
On restitution orders, I believe that, had the Government set its mind to the issue, it could have extended the system to include fire and ambulance service personnel, and I am disappointed that it did not endeavour to do so. It is a greater disappointment to me and to many other members that the Government did not take the opportunity to give added protection to victims of sexual offences by supporting Graeme Pearson’s or Margaret Mitchell’s amendments on that. That remains unfinished business.
No one chooses to be a victim or a witness of crime, and it is therefore incumbent upon us to ensure that victims and witnesses are heard and to seek to make the whole process, from the moment a crime is first reported to the point where an offender completes their sentence, less intimidating and less distressing. The bill represents a welcome step in the right direction and the Liberal Democrats will support it.
16:40
“Trust us.” That is the plea to adult survivors of sexual and physical abuse. “Trust us.” That is what we ask of them, in asking them to participate in the national confidential forum. However, trust is the most fragile of emotions; it is hard earned, easily lost and difficult to win back. Survivors have heard it all before, of course. Trust was taken from them as children in the most traumatic of circumstances, and they have heard the same thing since, with promises of psychological support and judicial action—promises that are not always kept.
That is not a political point—far from it—as we learn if we listen to petitioners Helen Holland and Chris Daly. Helen Holland spoke of fellow survivors who had passed away in recent years, saying:
“The people who died were denied the right to have their voices heard. Please do not deny people that right any longer.”
Chris Daly talked about retraumatisation, saying:
“Survivors have been making this point for years ... We have been telling the Parliament and the Government that survivors need psychological help now.”—[Official Report, Health and Sport Committee, 26 March 2013; c 3554-6.]
The Health and Sport Committee welcomes the aims of the national confidential forum. It was that aspect of the bill that we were asked to consider and we supported the Scottish Government’s stage 2 amendments, including lowering the age criteria, but some points from our stage 1 report are still to be addressed. We would welcome an update on the progress of the national confidential forum guidance for care providers, we would appreciate a sense of when the findings of the foster care research will be implemented, and we seek protection of training needs for those who will support participation at the forum.
As one witness said, survivors will judge the success of the forum on the basis of its outcomes for them. They will also want their testimony to help children who are in care today, and we should remember the 300 children who are reported to the children’s panel every year who are directly or indirectly affected by sexual abuse.
We need to remember that, nine years ago this month, Jack McConnell said sorry to adult survivors on behalf of the people of Scotland. He delivered that apology, in this chamber,
“to those who were subject to such abuse and neglect and who did not receive the level of love, care and support that they deserved, and who have coped with that burden all their lives.”
It is a moral imperative. We must lighten that burden and allow those troubles to be heard. We must regain that trust via justice measures as well as through healing, and we must support all survivors, whether they choose the forum or other remedies. In the words of the former First Minister, we must
“do more to support them in the future than we have ever done in the past.”—[Official Report, 1 December 2004; c 12389.]
I thank members for curtailing their speeches, and I apologise to Sandra White and John Finnie for being unable to call them. We come to closing speeches.
16:43
As I said in my opening speech, the bill contains some important measures that will help people who are affected by crime. Consequently, the Scottish Conservatives will vote in favour of the bill this evening.
However, it is important to point out that the bill has not met with complete support from victims’ organisations. The Scottish Government should therefore reflect on the words of Peter Morris, a campaigner for victims’ rights, who stated in his written evidence to the Justice Committee:
“To say that this legislation is radical is not true and to say that this now puts victims at the heart of the justice system is also not true.”
In other words, more can be done, so I hope that the bill is not the end of the process.
There are areas of the bill that could and should have gone further. The real travesty is the lack of political will from the Scottish Government to stop medical records and sensitive information being used to discredit witnesses and to play to the prejudices and myths that are known to persist in sexual offence trials. My amendments could have tackled the inappropriate and deeply damaging use of that information. We now have a situation where Scottish Women’s Aid, Engender, Action Scotland Against Stalking, Children 1st and other organisations support the proposal on the pilot and have offered help to try to make it work. Only the cabinet secretary and the Scottish Government have set their faces against it.
Despite the Scottish Government’s efforts to improve the lot of victims through the bill, there is an elephant in the room. Even if a victim is much better and more swiftly informed about the process, gives evidence in a safer and more protected environment, and a conviction is secured and they are able to make a statement before sentencing, all that will be cold comfort to the victim if the prison sentence that is imposed is nothing like the prison sentence that is served. Automatic early release for prisoners does a disservice to victims. It discredits the system and destroys public confidence, and the Scottish Government’s plans to tackle that disgrace will, in effect, continue to allow 98 per cent of offenders to be released early with no questions asked.
The bill is welcome, but my closing remarks put the limits of its effectiveness well and truly in context.
16:46
Scottish Labour will support the bill at decision time. We believe that the bill will make a positive difference to the experience of victims and witnesses during criminal investigations and proceedings. However, as others do, we believe that the bill could have gone further.
I am pleased that my amendment 19, which will enable victims to object to the awarding of compensation orders, was accepted. The justice secretary said that it was not absolutely necessary, but others including Scottish Women’s Aid and Rape Crisis Scotland felt that the bill, as it stood, could make matters worse for victims. I am therefore pleased that Parliament unanimously accepted their view and agreed to the amendment.
I also welcome the cabinet secretary’s reassurances to my colleague, Graeme Pearson, on amendment 17 on the rights of victims to make statements in forms other than the written form. I am sure that attention will be paid to how that reassurance is reflected in practice and the experience of victims in that regard. The reassurance is now on the record and is therefore available to victims and their representatives, which is always helpful.
However, I am disappointed that other amendments that received support from and, indeed, were proposed by organisations that represent victims and witnesses were not accepted by the cabinet secretary or by Parliament. The bill as it will be passed does not recognise the rights, needs, and wishes of child victims and witnesses, in particular. As I said earlier, the justice system has been constructed by adults for adults. Investigations and court processes can be confusing and frightening for adults, so how much more frightening are they for children? Assurances have again been put on the record that might assist people who work with children in those circumstances, but can they guarantee that some of the practices that children have endured will no longer persist?
For example, Children 1st has advised us of failures to keep children informed about progress and of failures to ensure that they understand the process and procedures that they are going to go through. They need to be communicated with in forms and using methods that they understand. We have heard an example in which police called at a school to talk to a young man about the court process that he was going to have to go through, so what had happened to him was made public to his schoolmates. The police visit did not take place at a time or place that he wanted, and he did not necessarily want everyone else to know about the ordeal that he was going through. Children’s rights and wishes need to be respected, but that does not happen often enough. We do not come up to scratch on that.
We are also disappointed that amendments that would have improved provision of information and support for victims and witnesses were not accepted, as Graeme Pearson and Margaret Mitchell have said. Graeme Pearson described a number of personal issues and real experiences of victims who have been let down by the system, and who have had to continue to repeat their experiences to a variety of people when there have been failures to pass information back to them about what is happening in court. We have all heard about such things. I am sure that no MSP who has served for any length of time has not heard first hand about such victim experiences.
Amendments to protect the victims of sexual crimes from having their medical and sexual histories revealed to the public in court were also, unfortunately, rejected. I am sorry that that happened. In particular, even if there was a problem with detailing a pilot in the bill, surely the justice secretary could have offered to run a pilot without its being in regulations. Surely that could have been the Government’s response to the suggestions, but it was not. As Margaret Mitchell pointed out, a pilot would have cost very little in comparison with the amounts of public money that are currently being used to argue one side of the independence referendum debate.
The stage 2 amendments on access to restorative justice seem to me to have been watered down. However, I understand that concerns on the issue were expressed by organisations that represent victims of domestic and sexual abuse. I hope that the watering down in amendment 8 today does not signal a retraction from the purpose of the amendment, which I strongly supported at stage 2.
I am sorry that the amendments that sought to enable children below the age of 12 to be allowed to make a victim statement were rejected, even though a long list of well-respected individuals and organisations have supported that. As my colleague John Pentland said, the Government seems to be reluctant to accept amendments that are offered by members of Opposition parties, even when they have attracted widespread support from representative organisations. It feels a little bit like either our faces or our politics do not fit when it comes to some amendments.
Duncan McNeil made an important point about the experiences of adult survivors of sexual abuse and the disappointments that they have encountered over the years. That really must not continue, so I echo his request for updates on progress.
The justice secretary said in his opening remarks that this was
“the end of a stage on the journey”
and not the end of the journey. I agree with that, because in our opinion the bill is unfinished business. Labour members hope—indeed, they intend—to return to the issues that were rejected today. We also intend to monitor how the bill’s provisions work in practice. We hope in the future to have the opportunity to make subsequent improvements.
I now call on Kenny MacAskill to wind up the debate. Cabinet secretary—you have until five o’clock.
16:51
First, I thank Duncan McNeil for his contribution. Understandably, the amendments and, indeed, the debate throughout have concentrated on the victims and witnesses part of the bill, but I think that we would do the nation a disservice if we did not record the important part that the national confidential forum plays in the bill. In putting it in a historical context, it was important to go back to the apology that many of us who were around at that time will know was made by the then First Minister, Jack McConnell. There was a historic wrong and the forum will be unable to resolve what happened to the individuals concerned, but it is the start of a process that we hope will help them.
My colleague the Minister for Public Health has been dealing with that matter. I am extremely grateful for the work that was done on it by Duncan McNeil and his colleagues. As I have said, putting on the record the background to the forum does all of us a great service.
I can clarify two points that Duncan McNeil raised. First, on good practice, the guidance is in preparation and it will be available by summer 2014. Secondly, on foster care, the results of the survey of those who were in foster care and their interest in the national confidential forum were communicated only yesterday, so perhaps that is in the post for Duncan McNeil. As I said, I am grateful for what Duncan McNeil has done in putting on the record the progress on on-going work with regard to the national confidential forum. In addition, on comments that Elaine Murray made just a few minutes ago, it is fair to say that it is unfinished business, too, with regard to those who have been victims of institutional abuse. There is welcome progress in that regard, and I am grateful to all those involved in it.
I am also grateful for the involvement in the bill of all those outside the chamber, although colleagues in other parties have expressed some disappointment in that regard. I will comment on that, but I think that in the main it has been recognised and welcomed that we are making progress. However, I accept that, as Elaine Murray said earlier, it is work in progress. We should remember that this is the first-ever victims and witnesses bill in the Scottish Parliament; it is the first time that dealing with victims and witnesses in Scotland has been enshrined in legislation. That should be put on the record and we should recognise the progress that has been made.
There are particular aspects that we still have to consider, but we will address them. I have made it clear that I do not think that putting a pilot on the face of primary legislation is the correct way to go. In that regard, I met Rape Crisis Scotland and encouraged it to meet the Scottish Legal Aid Board, and it has done so. There are options to consider, such as having a women’s law centre or a change in how we address certain matters, and I am open to doing that. I have seen the Legal Services Agency letter that was referred to. I know that agency well and was a director of it for several years. I am happy to consider its proposals. I think that we must look at matters in the cold light of day in order to work out what is best, but I am happy to give that commitment.
Is a pilot outside the provisions of the bill?
We have to look at what will provide best for victims and witnesses, especially those whom Rape Crisis Scotland is dealing with. That may be a pilot, a scheme that is discussed between Rape Crisis Scotland and the Scottish Legal Aid board, or something that none of us has yet thought of. I am committed to recognising that more has to be done. More will be done and how it will be done should be worked out with those organisations; I am happy to give that commitment.
Graeme Pearson correctly raised oral statements. Let us see how they operate down south. They have not commenced down there yet. I am happy to indicate that we will keep under review how they are progressing and whether they are working well.
The same applies to ages of children. We have gone for the age of 12 because that is when there is testamentary capacity and other aspects that relate to how children are viewed. If that should change, we can address it in years to come.
As I said to Elaine Murray, we should recognise that this is work in progress. We have reached the end of a stage of a journey, but it is a significant stage. For the first time ever, we are enshrining in law the rights of victims, ensuring that we also cover those who are witnesses, which can be deeply distressing for many individuals, ensuring that offenders should contribute and pay to alleviate suffering and distress, and ensuring that we address the issue of those who have suffered institutional abuse.
I would like to record my thanks to someone who is not in the chamber: the former Lord Advocate, Dame Elish Angiolini, to whom a great deal, if not all, of the credit for the bill’s genesis goes. Her jurisdiction predated the Administration in which I have served—it was a previous Labour and Liberal Democrat Administration. She correctly recognised that insufficient progress had been made and that a wrong had to be addressed. I pay tribute and great credit to her.
Equally, I give credit to the currently serving Lord Advocate, Frank Mulholland, who recognised that the issue was about not just victims but witnesses. I said that in many instances it can be deeply traumatic to be a witness. There can be instances, sadly, in which people can be subject to abuse, harassment or even threats, and we have to recognise that.
We have come a long way and I can assure Opposition members that we will keep particular aspects under review. When I first entered into law, more than 30-odd years ago, there was a hierarchy. The judiciary were looked after first of all. They dictated how matters would be dealt with in the court. Thereafter in the pecking order was the prosecution, then the defence, then expert witnesses. Nobody considered victims. At best, there might have been consideration of provision of a Women’s Royal Voluntary Service canteen, so that witnesses could get a cup of coffee. Sometimes that was provided; in many courts it was not. As for those who were witnesses, they were expected to just like it or lump it. They were expected to turn up whether they were civilians or police, and whether they were threatened or intimidated. To be fair, good work was done by the police, the prosecution and, indeed, sheriff clerks to alleviate such matters, but there was no consideration, planning or foresight to address them.
There have been some begrudging comments from some on the Opposition benches, but I put on record that now we have that historic first. We have enshrined in statute the rights of victims and witnesses. That is long overdue and we should pay tribute to those responsible for the bill’s genesis, in particular, the current and past Lord Advocates.
There is work to be done and I am happy to work to address matters with Opposition parties and the organisations and agencies that they mentioned. However, I would say to Margaret Mitchell that if she wants to address some of the difficulties of those who have suffered rape and sexual abuse, maybe she should reconsider where she is heading on the removal of the requirement for corroboration. Post-Cadder, the difficulty is significant, which is why she should read what Scottish Women’s Aid, Rape Crisis Scotland and Victim Support Scotland are saying. They are all united in the desire that action should be taken.
We have reached a historic juncture: we have enshrined in statute the rights of victims. We know the standards that they are entitled to expect and the standards that agencies are expected to achieve, and we know that the offender will pay. I am delighted to have moved the motion to pass the Victims and Witnesses (Scotland) Bill. It is work in progress, but work that we can be proud of.