Chamber and committees

Would you mind if I come back on that? I understand and agree with some of those points. However, I am looking at the amendment as it is drafted, and it is not about giving victims—or alleged victims, or whatever language you want to use—the ability to intervene, to influence, to agree or to disagree. It is about a one-way path of communication from the Crown to the individual who has reported a crime and is part of some form of criminal proceeding. The amendment simply says that when

“a prosecutor decides ... not to prosecute”

or “to discontinue” proceedings, they must,

“as soon as reasonably practicable, inform any person who is, or appears to be, a victim in relation to that offence or alleged offence”

of that decision. It is simply about improving communication and information. That is all that it seeks to do. It is not going beyond the reach of this Parliament or straying into the territory that you believe some of the other amendments in the group might be straying into; it is actually quite simple.

We agree in principle that people should be told about decisions. Let us reverse it: why should people not be told when there is a decision not to prosecute? If you can answer that, I would find that most useful.

I suspected that you were about to move to other amendments in this group, minister.

Before you do so, though, I have a point of clarification. In your opening remarks, before you spoke to the individual amendments, you said that this series of amendments will ensure that all victims have access to the same information, irrespective of length of sentence, and—I might need to check the Official Report for this—will expand the rights of victims in relation to, I believe, release. It might have been temporary release, but we can check that, too. Which of the amendments that you have just spoken to actually does that? My gut feeling is that it is amendment 172, which is part of the move to unify the different systems. However, having read the amendment, I am unclear as to how it will achieve the outcome of ensuring that all victims have access to the same information, irrespective of the sentence. Can you clarify how it does that?

Is it subsection (6), which seeks to repeal section 27A of the 2003 act, the part of amendment 172 that does that? That is a technical question on which you might want to seek some guidance.

I just want to get this clear. The Government is minded to agree with the principle that more people should be notified of a decision not to prosecute or to discontinue proceedings against an alleged offender—so, in principle, that is not an issue. Are you saying the issue is that people need an opt-out from that? I am just trying to understand. What is the opposition to amendment 239 as it is currently worded?

Pauline McNeill is right that I have not sat through all the evidence sessions. I know that it has been a long period, but I agree with the approach that we have taken in the past. Given that the Government has said that the amendments come from a good place, and given that we are all trying to seek the same outcome, we have a little bit of time—although perhaps not enough—between stages 2 and 3 for the Government to get on with some of that stakeholder engagement and for committee members to be involved. I hope that there is a process by which that information could be fed back to the committee, so that, when we come back to the bill at stage 3, we can make the right, informed decisions.

That is now in the Official Report, but there we go. I have said worse.

Other groups of amendments will focus on parole, and I appreciate that there is a wider discussion to be had on that issue, but I want to mention amendment 245, which is a small but important one, although the minister indicated that the Government might have issues with it. The amendment would remove restrictions on victims being able to make oral statements as part of parole proceedings. I say that it would “remove restrictions” because restrictions exist in the current system.

Section 17 of the 2003 act states that a victim must be afforded an opportunity to make written representations to the Parole Board ahead of a decision to release somebody. However, they may make oral representations to the Parole Board only in circumstances in which

“the convicted person is serving a sentence of life imprisonment”.

The minister understands that point.

My understanding is that oral statements are currently given not by a victim physically making representations at the hearing. I appreciate that there are lots of arguments as to why that would be problematic. At the moment, victims may make an oral statement to a member of the Parole Board but not to a member who is sitting on the panel of that hearing. Why that is the case has never been made clear, so perhaps that could be addressed. The board member then relays the oral statement to the hearing panel. I am not proposing to change that method. If that system works, so be it, but, if it could be improved, please let us do so.

However, I have a problem with oral representations being limited to circumstances in which

“the convicted person is serving a sentence of life imprisonment”.

People can be serving lengthy sentences for many other serious offences, and I believe, for many reasons, that those victims should be able to give oral representations, not just written representations. Victim Support Scotland points to the fact that it is about choice and flexibility. If a victim chooses to make an oral statement rather than a written statement, they should be given the opportunity to do so, and the circumstances should not be restricted solely to life sentences. I am not proposing any changes to the methodology, but there is a wider discussion to be had.

The minister said that there could be issues with amendment 245 in relation to resourcing and proportionality. On proportionality, I understand that it might be problematic if, at one end of the spectrum, all victims were given the right to make oral representations at parole hearings. However, I think that they should have that right so, if there are logical and practical reasons why that would not be possible, I would like to know what they are.

The other issue is resourcing. I understand the argument, but resourcing is not an argument in itself. Of course it will require more resource, perhaps from the SPS or the Parole Board for Scotland, or from other parts of the justice system. That should not be a barrier to making improvements. Resourcing cannot be the reason why members cannot support an amendment such as this.

Amendment 245 is one of two of my amendments in this group that the Government is not minded to support, but I will take up any offer from the minister to work with me on the amendment, which asks whether there is more that we can do and whether we can expand the franchise in any way so that more representations can be made by more victims in more scenarios and in relation to more sentence types. The status quo is not good enough, to be honest.

I think that I have covered all my amendments in the group, so I will leave it at that.

Good morning, convener, cabinet secretary and colleagues. I thank the committee and the convener for letting me attend to speak to my amendments.

I put on the record my thanks to the parliamentary clerks who have assisted with much of the drafting of my amendments. As members will know, it is often difficult for individual members to draft stage 2 amendments, as we do not have the assistance of a bill team behind us, so I thank the clerks for helping with some of the drafting at very short notice. That might present me with problems down the line when we come to some of them, but we have done the best that we can.

I also thank my office team, who have worked extremely hard on the amendments and the supporting documents that I have sent to committee members.

All my amendments, starting with the amendments in this group on the victims charter, have come out of my proposed member’s bill—the victims, criminal justice and fatal accident inquiries (Scotland) bill—which I first consulted on some three and a bit years ago and which was the original victims bill. That proposed bill stemmed from a manifesto commitment of my party at the previous election, but also from when I held the justice brief and sat on this committee.

Aside from two substantive elements of my proposed bill—on the not proven verdict and fatal accident inquiries—most of its elements will feature in our discussion this morning. The amendments that I have lodged have some central themes that are very relevant to my proposed victims bill, on which I consulted widely and which, I have to say, was received well by stakeholders.

I launched my proposed victims bill before the Scottish Government published what is now its victims bill. The Government’s bill was originally to be called the “Criminal Justice Reform (Scotland) Bill”, because it makes substantive changes to Scotland’s criminal justice system, but it miraculously became the Victims, Witnesses, and Justice Reform (Scotland) Bill. I always take impersonation as the best form of flattery, convener.

It is important that the first word in the title of the Government’s bill and of my original proposal is “victims”. People who are watching this morning’s proceedings should note that, because it proves that we all come at the issue from the same place. We all want to improve outcomes for victims as we work on the amendments at stage 2. We must use this opportunity—for me, it feels like an opportunity—to work collaboratively as a Parliament to improve the legislation and put victims at the heart of any reforms that we make. This is also a chance to set right some of the wrongs of the past, some of which have been well documented and high profile and have led to devastating outcomes for victims of serious crimes, including loss of life and the ruination of others’ lives.

Amendment 234 and others have come from discussions directly with victims of crimes, victim support organisations, victims’ rights campaigners and other third sector organisations, which often carry a lot of the heavy load in assisting people who have been victims of crime. Indeed, the briefing that all committee members will have received on Monday from Victim Support Scotland supports every one of my amendments. Whether it supports them as worded or in principle is another matter, but I hope that committee members will reflect on that, should the committee vote on any of them.

The victims charter is a good place to start. Amendment 234 seeks to place a duty on the new victims and witnesses commissioner for Scotland, should the Parliament be minded to create such a role, to prepare and publish something called a victims charter within one year of section 1 of the bill coming into force. In essence, the aim of having a victims charter is to improve victims’ knowledge and understanding of the justice system, which is an issue that has been raised by many stakeholders I have met. That is notwithstanding the live conversation on the definition of “victim” or whether a commissioner should be created at all—that is not for me to decide.

When researching for the amendment, I discovered that there is already something called the victims code in existence, although I have to say that no one I have spoken to knew of it or was aware of it. That tells me that the victims code was probably published with some well-meaning intention in historical legislation but that it has not featured as a key part of the justice system or in victims’ understanding of their interactions with it.

I am not in favour of duplicating work. If the victims code exists and could be made better, that is perhaps one approach that we could take. However, if we are to create a victims commissioner, surely we should make clear their duties. I appreciate that section 1 of the bill does that, but I would like to see something in addition to that through a victims charter.

An issue that became quite fundamental to amendment 234 was that many victims expressed a lack of understanding of how the justice system works in practice and what their rights are. Many are unhappy with the form and method of the communication that they receive as they journey through what is often quite a traumatic process. We should bear in mind that victims of crime are probably already in a vulnerable position.

In my view, a simple and well-worded victims charter would be a single, comprehensive and understandable source of information that would let victims know what their rights are, how the process works and what their various points of contact will be. According to amendment 234, that could include, among other things, a description of the justice system and how victims may interact with it; victims’ rights in relation to criminal investigations and proceedings, at all stages when they may interact with the system; the processes available to a victim for upholding their rights in relation to investigations and proceedings; and, more importantly, in subsection (2)(d), the manner, frequency and methods of communication with victims to which criminal justice agencies must adhere.

We are off to a good start—we have found some agreement on my first amendment. I hope that that has set the tone for the rest of the morning.

I take on board the cabinet secretary’s point. I am pleased that the Government accepts the need for a charter. I see it very much as a non-binding but moral contract with the public. I am very happy to work with the Government on the wording of an amendment.

I take on board the point about the introduction of the charter. I have sat on a number of recruiting panels in the Parliament for other public roles, so I know that it can take time to get the right person, and we do want the right person in that role. It feels reasonable that the charter should be produced 12 months after that person takes office. If my or the Government’s team would like to propose an alternative amendment ahead of stage 3, I will bring it back to the Parliament, and I hope that we will get agreement on it.

Amendment 234, by agreement, withdrawn.

Section 10—Carrying out investigations

Amendments 102, 103 and 11 not moved.

Section 10 agreed to.

Section 11—Initiation and conduct of investigation

Amendment 12 not moved.

Section 11 agreed to.

Section 12—Investigations: witnesses and documents

I am hiding the light with the fluffy bit, but I will move the fluffy bit for your benefit, convener.

I will follow on from the general theme of decisions to prosecute and the deals that take place. There is another important aspect, which is where the Crown has decided not to prosecute or to discontinue proceedings. I lodged amendment 239 because I feel that there is still much work to be done in that area, and I hope that the Government will accept some of the points that I am about to make.

Amendment 239 would put in legislation the victim’s ultimate right to be informed when a decision has been made not to prosecute a crime or alleged crime or to discontinue proceedings. The amendment would achieve that by adding a new section to the Victims and Witnesses (Scotland) Act 2014, which would state that, where a prosecutor decides to discontinue prosecution or not to prosecute a case, the prosecutor must, as soon as reasonably practicable, inform the victim of that. The definition of “prosecutor” could include the Lord Advocate, Crown counsel or a procurator fiscal. That could of course be expanded at stage 3 to make it more appropriate or to include any other relevant justice partner or stakeholder that the Government sees fit to be that point of contact.

Ultimately, why have we got to this place? I consulted on this very issue in relation to my original proposed member’s bill at the end of 2021. I refer members to pages 19 to 21 of the consultation document, which was published by the Parliament at the time. The question asked was whether we should enshrine the right of victims to be notified of a decision not to prosecute. Of the 146 individual responses, there was an 83.6 per cent positivity rate in answer to that question. That told me, even back then, that there was an appetite for change.

The numbers speak for themselves. At the time of that consultation, the only data available was from 2019-20, which showed that there were around 88,000 summary cases in court that year. Since then, I have had more up-to-date information from the COPFS. Its published data for the year 2022-23 shows that 13,000 cases were marked for no action at all and 24,500 cases were marked for no further action.

Of course, not every one of those 38,000 cases that came before the Crown would have had a direct victim, but there were a substantial number of cases in the system in which somebody made a decision not to proceed, and one can only assume that a vast number of those will have had an alleged victim somewhere in the process. That same year, only 192 victims exercised their right to request a review of the decision not to prosecute. Of the 192 who requested a review, only 29 cases had the decision not to prosecute overturned.

Of those 38,000 cases, two or three dozen led to a reversal of the decision not to prosecute. Why is that? Because the percentage of people who request a review is tiny. I suspect—in fact, I am led to believe—that that is because very few people are aware of their right to request a review. Many are in a difficult and traumatic position and are probably not aware of how to go about doing it. The procedure is published on the COPFS website, but goodness knows how many people get told about their right to review or how to go about exercising it, or how many are even fit and capable of doing so at the time. We should bear in mind that, at that point in a decision, we are generally talking about the first couple of months after a crime has been reported.

The Crown Office says that, when a decision is made, you can request a review. Anecdotally, though, the numbers seem to stack up and bear out my submission that not enough people are being told about a decision not to prosecute. However, we can fix that, and amendment 239 is one way of going about it. I would be interested to hear what the cabinet secretary has to say.

I ask members and the cabinet secretary to listen to the views of Victim Support Scotland. When I asked this very question about notification in my consultation some three years ago—it was question 10 in my consultation document—its response was:

“We strongly believe that it should not be for a victim of a crime, or their family ... to actively seek information about whether the crime against them is being prosecuted. It should be for the ... (COPFS) or their representatives to proactively contact victims to inform them of such decisions.”

We can amend the bill in any way that the Government sees fit. I am not entirely sworn to my proposed wording. I have gone about this in the way that I think will meet the objective, although it might be argued that it is unresourceable or impractical; that it will be too difficult; that the volume of cases will make it unreasonable; and that people will not have given permission to be contacted. That is not the point—the point is that far too many decisions are being made at the moment, without victims, or alleged victims, being told about them. That has to change, and I am happy to work with the Government ahead of stage 3 on any amendment that it sees fit.