The prosecution of domestic abuse cases at sheriff summary level

Supporting, protecting and engaging with victims

253. During our inspection, we sought to assess how well COPFS supports and protects, and communicates and engages with victims of domestic abuse in summary cases. We considered the extent to which victims are receiving a person-centred and trauma-informed service. Our findings draw on the 60 cases we reviewed (featuring 61 victims), our engagement with 23 victims and more than 50 advocacy workers, as well as interviews with those working for COPFS and other stakeholders.

254. Many of our findings in this chapter will relate equally to victims and witnesses, however our focus in this inspection was victims. We also considered child witnesses specifically (see from paragraph 458).

255. Sections 1 and 1A of the Victims and Witnesses (Scotland) Act 2014 set out general principles to which the Lord Advocate (and, consequently, COPFS) must have regard. In relation to victims, these include:

• a victim should be able to obtain information about what is happening in the investigation or proceedings
• the safety of a victim should be ensured during and after the investigation and proceedings
• a victim should have access to appropriate support during and after the investigation and proceedings
• in so far as it is appropriate, a victim should be able to participate effectively in the investigation and proceedings
• victims should be treated in a respectful, sensitive, tailored, professional and non-discriminatory manner
• victims should, as far as is reasonably practicable, be able to understand information they are given and be understood in any information they provide
• victims should have their needs taken into consideration
• when dealing with victims who are children, the best interests of the child should be considered, taking into account their age, maturity, views, needs and concerns
• victims should be protected from secondary and repeat victimisation, intimidation and retaliation.

256. In accordance with section 2 of the 2014 Act, Standards of Service for Victims and Witnesses have been published by COPFS in partnership with other justice agencies.^[67] These standards set out the service victims can expect to receive and state the justice agencies’ collective commitment to ‘putting the rights of victims and witnesses at the heart of Scotland’s justice system’ and to ‘helping victims and witnesses feel supported, safe and informed at every stage of the criminal justice process’.

257. All those working for COPFS require to have regard to the general principles of the 2014 Act and the service standards. In the context of domestic abuse cases, they are particularly relevant to:

• prosecutors
• the Victim Information and Advice (VIA) service. Part of COPFS, VIA provides information and advice to certain categories of victims and witnesses. All victims of domestic abuse should be referred to VIA
• Enquiry Point. This is COPFS’s customer contact centre and is the first point of contact for many victims seeking information about their case.

258. In a domestic abuse case that is being prosecuted at sheriff summary level, VIA will generally proactively contact the victim and provide information at the following stages:

• following the accused’s first appearance in court, VIA will advise the victim of the outcome by phone and by letter. VIA will advise if the accused has been remanded or released on bail and what the bail conditions are
• following an intermediate diet, VIA will write to the victim only if a plea has been tendered, if a trial date has changed or if the bail conditions have been amended
• following a trial diet, VIA will write to the victim with the outcome. VIA will also write to the victim if the trial was adjourned
• following sentencing. If sentencing is deferred, VIA will write to the victim only after the first deferment and following the final sentencing decision.

259. The above sets out the minimum level of contact with a victim. Additional contact may take place depending on the circumstances of the case, including if contact is initiated by the victim. In addition to VIA, prosecutors may also have contact with a victim if the victim attends court. In Glasgow and in the summary case management areas, prosecutors also seek to make contact with the victim during their case preparation (see from paragraph 346).

260. In this chapter, we consider how COPFS:

• helps to protect the safety of victims, through its approach to bail conditions and non-harassment orders
• supports victims to give evidence at court, by applying for appropriate special measures
• communicates with victims, keeping them informed of developments in their case.

Safety

Bail conditions

261. The decision to remand an accused person or to release them on bail is one for the sheriff. If releasing the accused on bail, it is also for the sheriff to decide whether standard or special conditions of bail should apply, and what any special conditions should be. The sheriff’s decision should, however, take into account any representations made by a prosecutor. In deciding whether to oppose any bail application by an accused person or request special conditions of bail, a prosecutor will consider the SPR, including any assessment of risk provided by the police, as well as COPFS policy and any other relevant information.

262. In the cases we reviewed, special bail conditions were imposed on the accused by the court at first appearance to protect 45 (74%) of the 61 victims. For the remaining 16 victims, the court dealt with the accused as follows:

• in six (10%) cases, standard bail conditions were imposed on the accused
• the accused was remanded in one (2%) case
• the accused was ordained to appear in three (5%) cases
• in one (2%) case, a warrant was taken for the arrest of the accused
• in five (8%) cases, the accused pled guilty and was sentenced.

263. These results suggest prosecutors are regularly seeking special conditions of bail to support victims, which we welcome. However, we were concerned that special conditions were not always sufficiently tailored to the protection needs of the victim.

264. Some of the victims we interviewed said bail conditions made them feel safer. One victim in particular welcomed the accused in her case having broad special bail conditions not to enter the town where she lived. However, most victims we interviewed were frustrated that special bail conditions were not more tailored to their circumstances and did not help reduce the risk posed by the accused. For example, more than one victim said the accused in her case was not permitted to enter her street but, due to the location of her house, was able to continue his harassment and intimidation from a side street or rear alley. Victims felt they could have helped shape more appropriate conditions for their situation had they been consulted by the police or COPFS.

265. There would be little time for a marking depute to consult a victim about bail conditions when marking a custody case. While more time is available to deputes marking other types of cases, it would be most efficient if the police would provide detailed information about victims’ views on bail conditions in SPRs. Too often however, the information provided by the police relates to whether bail conditions are wanted by the victim, rather than what those conditions should be. We were concerned that special bail conditions have themselves become standardised, rather than tailored to the risk posed by the accused and the safety of the victim.

266. Support organisations can also be a useful source of information about appropriate bail conditions. Advocacy workers told us they submit reports to COPFS about victims’ views on bail. However, they said they rarely received a response and wondered whether the reports had been considered when the conditions imposed by the court did not reflect victims’ views. Examples of requests they felt had been ignored included one victim who wanted to have her workplace covered by bail conditions, and another victim who wanted to have her street covered. In the latter case, the victim’s views not being reflected in the bail conditions resulted in the accused trying to rent the house next door (Recommendation 12(a)).

Breaches of bail

267. A recurring theme from our interviews with victims was their view that breaches of bail are not taken seriously by the justice system. Victims reported breaches to the police, but felt the police did little to investigate. Victims felt the onus was on them to provide the police with evidence of the breach. One victim told us that police suggested she approach her neighbours herself to ask if they had doorbell footage of the accused breaching bail.

268. Even when accused were reported for breaching bail and prosecuted, victims felt there were no consequences. They described the accused being released with the same bail conditions as before. This left them demoralised and more likely to disengage from the justice process. Several victims told us they had given up reporting breaches of bail because they were not taken seriously.

‘Given that he has breached bail so often, it feels like he can just do whatever he wants without consequence.’

269. Many of the frustrations expressed by victims regarding breaches of bail were aimed mostly at other justice agencies, particularly the police and the courts. Where COPFS receives a report of a breach of bail, it will prosecute if there is sufficient evidence. Decisions on whether to release the accused on conditions that they have already breached are for the courts. In response to concerns raised by support organisations that accused were being released on the same conditions as those they had just breached, the National Lead for Domestic Abuse undertook to review some cases where this had occurred to check the role played by COPFS. In all the cases reviewed, prosecutors had opposed bail.

Changes to bail conditions

270. A review of bail conditions can be requested by a prosecutor although are more commonly requested by an accused seeking to remove or vary conditions. COPFS guidance states that a prosecutor must notify VIA of any application to review bail and the decision of the court. In turn, VIA must pass the information to the victim. The guidance emphasises the importance of doing so immediately in domestic abuse cases. The guidance also notes the importance of obtaining the victim’s view on a bail review application. Their views will be taken into account by the prosecutor when deciding whether to oppose the application.

271. A victim’s view on a bail review application can be obtained through the police, VIA or a support organisation. We found that practice varies across Scotland – in some areas, VIA contact the victim while in others, prosecutors instruct the police to do so. We heard that instructions to contact the victim are often not issued until the day before the bail review hearing, leaving little time for a victim to be consulted. We also heard that some victims were not informed of bail review applications and their views were not sought, despite this being contrary to the guidance.

272. Advocacy workers and victims told us that sometimes they only find out about a change to bail conditions once the decision has been made. This limits their ability to plan for their safety. Victims found it difficult to understand how bail conditions which affect them could be changed without them being informed or consulted. One victim we interviewed moved house within a specific area, believing it to be protected by bail conditions. She discovered the bail conditions had been changed and the area was no longer covered when she tried to report a breach of bail to the police. Advocacy workers also told us that if they were informed of bail review applications, they would be happy to find out victims’ views and pass these to COPFS.

273. In the cases we reviewed, eight featured applications to review bail conditions. All applications were made by the defence. In one case, the victim was not informed of the application as they were not affected by the conditions while in another case, the victim was present in court when the application was made. In the remaining six cases:

• there was no record of the victim being advised of the bail review in advance
• only three of the six victims were informed of the bail review outcome. This was done by letter from VIA. In one of these cases, VIA issued a further letter to the victim five weeks later which wrongly referenced the original bail conditions.

274. If victims are to be kept informed of developments in their case and able to participate in proceedings that affect them, and if the safety of victims is to be ensured – all in line with the general principles of the 2014 Act – then COPFS should respond to bail review applications appropriately and in line with its own guidance. This will require SCTS to set a realistic date for hearing applications, such that COPFS has sufficient time to obtain the victim’s views. It will also require COPFS to:

• routinely notify domestic abuse victims of bail review applications that affect them
• seek victims’ views on the application either directly or via the police or a support organisation
• inform victims of the outcome (Recommendation 12(c)).

275. Prosecutors can also apply to the court for a review of bail conditions, although we heard this rarely happens. Advocacy workers said they sometimes raised the possibility of a review of bail conditions with VIA, but felt that VIA acted as a ‘gatekeeper’ to prosecutors who would be best placed to assess the need for a review. We did hear that where there had been a breach of bail but this could not be prosecuted due to a lack of corroborative evidence, marking deputes would contact court deputes to consider whether a review of bail in the substantive case was merited instead. However, in light of concerns raised by victims and advocacy workers about breaches not being taken seriously, there is a possibility that any application to review bail conditions may not be granted.

Informing victims of bail conditions

276. Following the first calling of a case, when the accused first appears in court, victims are advised of the outcome including whether the accused is on bail and the nature of any bail conditions. Victims highlighted to us the importance of finding out this information immediately – it helped them take steps to protect themselves if needed, and meant they were aware of conditions and able to report the accused to police if they were breached.

277. VIA has committed to attempting to phone domestic abuse victims to advise them of bail conditions promptly. If VIA is unable to contact the victim, the police are asked to make contact instead. The initial phone call to the victim is followed up with a letter. This letter will be the victim’s first from VIA. It sets out the role of VIA and the outcome of the first calling of the case. It also includes a copy of any bail order. VIA will attempt to send these letters the same day as the first calling and, if not achieved, the following day.

278. In the cases we reviewed, there were 58 victims who VIA required to inform of the outcome of the first calling of the case. We found that:

• for 15 (26%) victims, VIA successfully made contact with the victim within 24 hours
• for 15 (26%) victims, VIA attempted to make contact with the victim within 24 hours but were unsuccessful
• for 15 (26%) victims, there was no record of VIA attempting to make contact with the victim
• for 13 (22%) victims, no telephone number was available for the victim and so no attempts to make contact were made.

279. For the 43 victims where VIA did not successfully make contact, VIA asked the police to notify 13 victims of the outcome of the first calling. There was no record of the police being asked to notify the remaining 30 victims. It is possible that the police were asked in some of these cases, but this information was not included in the case file.

280. Letters about the outcome of the first calling of the case were sent to 51 (84%) victims. No letter was sent to one victim in the Rest of Scotland and to two victims (in one case) in Glasgow. No letter was sent to seven victims in Dundee. For one victim in Dundee where a letter was sent regarding the outcome of the first calling, we were concerned that this letter was only sent seven weeks later.^[68]

281. VIA’s commitment to contacting the victim promptly is described differently in various documents, which impacts how it is delivered in practice. In a joint protocol with other justice agencies regarding victims and witnesses generally, the commitment is to attempt contact with the victim on the same day as special bail conditions are imposed.^[69] This is echoed in internal VIA guidance, which says contact should be made ‘on day of court’. In its joint protocol with the police regarding domestic abuse, COPFS states that notification of the outcome will be done ‘that day or within a maximum of 24 hours of the accused appearing in court’.^[70]

282. The lack of clarity as to whether the victim should be notified on the same day as the first calling, or within 24 hours of it, has led to different understandings of the commitment among VIA staff and varying practice. While we heard of some VIA staff making significant efforts to notify victims on the same day, others were content to wait until the following day.

283. COPFS requires to be consistent in its public facing protocols and its internal guidance to staff. This will ensure that victims know what to expect, and that practice is consistent across Scotland. In our view, VIA should attempt to contact the victim on the same day as the first calling of the case. Where they are unsuccessful, the police should be asked to notify the victim instead. It is important that victims are informed of the outcome whether the accused is remanded, released with bail conditions or with no conditions. One VIA officer said they did not tell the victim if an accused had been remanded until the following day as there was no risk if he was in prison. However, this failed to take account of the fact that the victim was unaware of the absence of risk.

284. In light of the results of our case review, we explored why victims are not being more routinely informed of the outcome of first calling of the case by phone and by letter. We heard from VIA staff that this is one of their most challenging tasks, given how busy they are and how time-sensitive the task is. They also highlighted three key barriers to delivering this commitment:

• the police have provided no phone number for the victim in the SPR, or the number is incorrect
• the outcome at court is not known until late in the day (an issue which has been exacerbated at times by courts sitting later due to well-documented issues with the prisoner escort contract)^[71]
• the victim does not answer the phone.

285. It is vital that the police include accurate contact details for the victim in SPRs. This is particularly important in reports concerning domestic abuse, where COPFS will require to make contact with the victim urgently after the first calling of the case. Ideally the police would include the victim’s phone number and email address, and ensure that these are accurate. We saw too many cases where this information was missing. When it is missing, COPFS can take steps to find the information, by searching systems or by instructing officers to provide it. Practice varied however, with some COPFS staff taking these steps and others not.
286. VIA obtain the outcome of the first calling of the case from the ‘criminal online portal’ operated by SCTS. Clerks upload the outcome and check (‘validate’) that they are accurate. The time at which the results are validated varies day to day and by court and jurisdiction. We heard that SCTS requires this to be done within 24 hours, but most clerks ensure it is done on the same day. One clerk told us they validate the results at the end of the day rather than on an ongoing basis, as it requires concentration and attention to detail that are not possible when the court is still operating.

287. Generally, VIA staff await the court outcome being validated before they notify the victim. This is because the validated results are the official public record of what has happened in court. While this ensures accuracy, it means VIA staff may have to wait until late in the day before they are able to notify victims. Sometimes the results are not validated until later in the evening, by which time a VIA officer may have finished work. We heard from several committed VIA officers who stayed late or who finished work but went online again later in the evening to obtain results and ensure victims were notified promptly. While we welcome the dedication shown by these VIA officers, this approach is not sustainable and relies on the goodwill of individuals.

288. To help staff deliver a commitment to notify victims in domestic abuse cases of the outcome of the first calling of the case on the same day, COPFS could:

• work with SCTS to ensure court results are validated promptly (with consideration being given to prioritising certain types of cases)
• review the working pattern of the VIA officer role
• consider whether the depute’s record of what happened in court should be made available to VIA staff immediately and that this be used to update victims where clerks are late in validating court results (we heard this approach is already being used in some areas)
• consider whether the unvalidated result should be shared with victims, with appropriate caveats. We heard from some support organisations that this is the approach they take to updating victims when court results are late in being validated.

289. Another barrier to VIA successfully notifying victims of the outcome of the case’s first calling is that some victims do not answer their phone. This is often because VIA are calling from an unfamiliar, corporate COPFS number. VIA officers estimated that only around half of the people they phone pick up on the first attempt. This is a broader issue for VIA and does not just affect the pick-up rate for calls about the first calling of the case. It may be exacerbated for these calls, however, because this is usually the first contact VIA will have had with the victim. COPFS should consider how to manage this issue better. All VIA officers have been issued with mobile phones. Pick-up rates would improve if more effective use was made of them. We heard from one VIA officer who often texted victims from his mobile phone to explain who he was, then followed up with a phone call. His pick-up rate was significantly better as a result.

290. As noted above, where VIA are not able to make contact with the victim after the case’s first calling, they will ask the police to notify the victim instead. This was done in different ways across the country, and in some areas, it was possible that police were notifying the victim even where this had already been done by VIA. There was also inconsistency in whether VIA were informed by the police that they had successfully made contact with the victim. In some areas, the police provided an incident number to VIA, signifying that officers had been deployed to the victim’s address. We had preliminary discussions with Police Scotland about how this process could be streamlined, to make it more efficient, avoid duplication and improve the victim experience. They were committed to taking this forward in partnership with COPFS, which we welcome (Recommendation 12(b)).

Recommendation 12

With regard to bail in domestic abuse cases, COPFS should:

(a) ensure that prosecutors provide sheriffs with information about whether victims want special bail conditions and, if so, what those conditions should be, tailored to each victim’s needs

(b) work with justice partners, particularly the police and the Scottish Courts and Tribunals Service, to ensure that victims are informed of the outcome of the accused’s first appearance on the same day, and update all guidance and protocols accordingly

(c) ensure that victims are informed of bail review applications, their views are sought and put before the court, and they are informed of the outcome timeously.

Non-harassment orders

291. A non-harassment order (NHO) is a protective order that features conditions that require an offender to refrain from specified conduct in relation to the victim for a specified period. Victims told us that obtaining an NHO is a priority for them. They are looking for the security and protection an NHO offers once any bail conditions come to an end at the conclusion of the criminal case.

292. The Domestic Abuse (Scotland) Act 2018 introduced a requirement that, following a conviction for a contravention of section 1 of the 2018 Act or any charges to which the domestic abuse aggravator applies, a court must consider and make an NHO for the victim and any children^[72] unless satisfied that this is not appropriate or necessary for their protection. Where these criteria are not met, the prosecutor can still apply to the court to make an NHO in certain circumstances. In deciding whether to make an NHO, the court must hear the views of the prosecutor. COPFS guidance makes clear that any representations made by prosecutors should include the views of the victim regarding an NHO to assist the court.

293. Prosecutors therefore require to know victims’ views on NHOs. This information is needed at the earliest stage in the case, in case the accused pleads guilty at the first calling. It therefore should be included by the police in SPRs. While this information was often (but not always) included in the SPRs we reviewed, the quality of the information varied.

294. A victim’s views on the need for an NHO may change with the passage of time and as their circumstances change. It is therefore important that prosecutors obtain the most up to date position of the victim so this can be shared with the court. This means returning to the victim during the course of the case and checking the latest position. Prosecutors may themselves ask victims for their views or may instruct VIA to do so. If the victim is receiving support from an organisation such as ASSIST, that organisation will usually submit a report to COPFS setting out the victim’s views.

295. Prosecutors we interviewed understood the importance of obtaining the victim’s latest position on an NHO. However, this understanding was not always shared by VIA. Some VIA staff we interviewed were frustrated and embarrassed by the number of times they were asked to contact a victim about an NHO, when the information was already in the case file. There appeared to be a lack of understanding on their part about domestic abuse and why victims might change their mind as time passed.

296. Some victims told us they had never been asked for their views on an NHO by COPFS, only by their advocacy worker. Advocacy workers told us that when COPFS staff do seek the victim’s views, they are simply ascertaining whether the victim wants an NHO, rather than having a meaningful discussion that may inform the tailoring of the order to meet the victim’s needs. Both victims and advocacy workers felt that children were often missing from the terms of an NHO (Recommendation 13(a)).

297. When a victim is engaged with a support organisation, their advocacy worker will submit reports to COPFS about the victim’s views regarding an NHO. Prosecutors said they found these reports to be a valuable source of information. However, advocacy workers were concerned that the reports were not reaching the appropriate prosecutor timeously. The reports are submitted electronically to a central mailbox and should then be added to the relevant case by COPFS staff. Advocacy workers were concerned that they received no acknowledgement that the reports had been received and processed. Advocacy workers also told us that, in some cases, it seemed as though the reports had not been read. For example, when they attended court, no mention was made of the information in their reports. One victim we interviewed was involved with two support organisations. Both organisations submitted reports regarding her desire for an NHO. Despite this, the court did not grant an NHO because of a ‘lack of engagement’ from the victim (Recommendation 13(b)).

298. While there was information about the victim’s views on an NHO in most of the cases we reviewed, there were also cases where this information was not recorded and therefore appeared not to have been sought. In the cases that had reached trial however, it is possible that the prosecutor sought this information from the victim when they met at court.

299. Thirty cases we reviewed, involving 31 victims, had reached the stage where the accused had pled guilty and the court had considered an NHO:^[73]

• for 12 victims, an NHO was made. The lengths of the NHOs ranged from one to five years
• for 19 victims, no NHO was made. The most common reason given was that the victim did not want an NHO. Other reasons included that the victim had not been supportive of the prosecution, the sheriff thought an NHO was disproportionate, and the sheriff considered an NHO was not competent, given the nature of the plea accepted by COPFS.

300. Support organisations often provide information and guidance to victims about NHOs and the specific conditions of the orders made in their cases. Some support organisations told of difficulties they had obtaining a copy of the NHO. Where this is the case, or where a victim is not receiving support from another organisation, victims are reliant on COPFS informing them of the existence and contents of any NHO. Unfortunately, in some of the cases we reviewed, this information was not sent to them for some time.

Recommendation 13

In domestic abuse cases, COPFS should ensure that:

(a) throughout the case, the victim’s views on the need for a non-harassment order and its contents should be sought, whether directly or through a support organisation

(b) reports containing the views of the victim about non-harassment orders should be processed and brought to the attention of prosecutors timeously, and the victim’s views put before the court.

Undertakings

301. Where an SPR is submitted to COPFS and the accused has been released on an undertaking to appear at court on a specified date, the marking depute may need to postpone the undertaking to, for example, allow further enquiries to take place. Notice of the change in date is served on the accused or their solicitor. Template letters can be adapted by prosecutors for this purpose. However, there is no equivalent template letter to notify the victim of any change in date. There was no consensus among those we interviewed about who was responsible for notifying victims of a postponed undertaking or on how this was to be done. This was not helped by inconsistent guidance.

302. The joint protocol between COPFS and Police Scotland on domestic abuse states that, when an undertaking date is first set, it is for the police to notify the victim that the accused has been liberated and the conditions that apply, one condition being the date the accused must appear in court. It also states the police will also notify the victim of any change to a condition affecting them. COPFS’s internal guidance is, however, inconsistent on who should notify the victim if an undertaking is postponed:

• one source of guidance states that the prosecutor must refer the case to VIA. VIA inform the police who in turn inform the victim
• another source states the prosecutor informs VIA, and VIA inform the victim
• another source states that prosecutor instructs the police to inform the victim.^[74]

303. The inconsistent guidance is further complicated by existing processes. Cases are not referred to VIA until they are marked for prosecution in court. There is no step in the current electronic process by which VIA can be informed of a postponed undertaking. VIA will therefore be unaware of the case unless informed of it by a prosecutor.

304. We heard a range of views from prosecutors, VIA officers and administrators about who is responsible for advising the victim of a postponed undertaking. Some prosecutors felt it was a VIA role, but were unclear how VIA became aware of the case and the need to get in touch with the victim. Some VIA officers said they had no involvement in a case until it called in court. Some staff said it was the responsibility of the police, but were not clear who advised the police. More positively, we heard from several prosecutors who said they took personal responsibility for either instructing the police or VIA to notify the victim.

305. There is a need to provide staff with clear guidance to ensure that victims are notified of postponed undertakings, and to ensure this guidance is supported by appropriate processes. If victims are not informed, they will believe a case has already called on a certain date and that they have simply not been told the outcome.

Recommendation 14

COPFS should review its guidance to ensure there are clear, consistent instructions to staff about who is responsible for notifying victims of postponed undertaking dates. Guidance should be supported by appropriate processes, and staff should be made aware of the approach to be taken.

Special measures

306. Most victims we interviewed were worried about going to court to give evidence. Concerns included not knowing what to expect, seeing the accused at court and giving evidence. A few victims said they were particularly fearful of aggressive questioning and the way they would be treated by the defence. A few victims who had given evidence said that it felt like they were on trial. One victim told us she had attended court to give evidence, but had been too scared of the accused to speak out. Even those who told us they were keen to have their say in court nonetheless also felt apprehensive about giving evidence.

307. Special measures are steps that can be taken to help vulnerable witnesses give evidence at court. In domestic abuse cases, all victims are deemed vulnerable and therefore entitled to special measures.

308. A standard special measure is one which a court will automatically grant to a deemed vulnerable witness upon application. These are:

• a live television link from within the court building (TV link) or from a remote site (remote TV link)
• a screen
• a supporter.^[75]

309. These standard special measures can be used in combination – for example, a victim may wish to use both a screen and a supporter.

310. VIA includes information about special measures in its letter to victims in domestic abuse cases following the accused’s first appearance at court.^[76] The letter references an online booklet which contains information about special measures. It also invites the victim to get in touch with VIA to discuss the measures that would be suitable for them. The letter states that if the victim does not get in touch, VIA will by default apply to the court for the victim to use a screen and a supporter. Due to the short timescales for summary proceedings, the letter states that victims should get in touch with VIA to discuss special measures within two weeks of the date of the letter if the accused is in custody, and within four weeks if the accused is not in custody.

311. Where the victim gets in touch with VIA, this provides an opportunity to discuss any additional vulnerabilities and whether non-standard special measures may better help the victim give evidence. Non-standard special measures are:

• the taking of evidence by a commissioner
• evidence in chief in the form of a prior statement
• a closed court, by excluding the public when the witness is giving evidence.^[77]

312. Non-standard special measures are not automatically granted by the court when applied for. Their use can be opposed by the defence and/or refused by the court.
313. COPFS must lodge a Vulnerable Witness Application (VWA) with the court in relation to a deemed vulnerable witness for the use of standard or non-standard special measures, a combination of the two, or no special measures. In summary proceedings, the VWA must be lodged with the court 14 days prior to the trial diet. As there is no automatic entitlement to non-standard measures, any application for these must contain the views of the witness and the reason why the measures requested are the most appropriate.

Vulnerable Witness Applications

314. At summary level, VWAs are prepared by VIA officers and signed by prosecutors before being lodged with the court and intimated to the defence. The process for dealing with VWAs varies between offices. This variation is sometimes prompted by different procedures within different sheriff courts. In the main, VWAs are signed electronically by prosecutors although some offices still require prosecutors to sign paper copies. While some sheriff courts accept VWAs electronically, others require paper applications to be lodged.

315. We heard that as almost all VWAs at summary level are template applications for standard measures for deemed vulnerable witnesses, they are generally not read or checked by prosecutors before signing. In one office, VIA officers added the prosecutors’ signature electronically, without the prosecutor seeing the applications. While this approach is more efficient, it removes an opportunity for quality assurance of the VWAs prepared by VIA. Where VWAs are for standard special measures for deemed vulnerable witnesses, we consider that any checking could be done by a more senior VIA officer, rather than a prosecutor. Care would require to be taken however, to ensure that non-standard applications or those relating to witnesses who are not deemed vulnerable are more closely scrutinised by a prosecutor.

316. We heard about backlogs in processing VWAs and delays in lodging them at court. This was caused by:

• lack of capacity among VIA officers to draft and process VWAs promptly due to the volume of other work
• lack of capacity among prosecutors to sign VWAs due to the volume of other work.

317. Delays in processing VWAs result in the applications being submitted late – sometimes they are not lodged before the intermediate diet and sometimes not even before the trial diet. We heard of instances where this resulted in trials being adjourned due to special measures not being in place. Where VWAs are prepared on time but not signed promptly, this can result in the applications having to be re-dated before lodging with the court. A sheriff clerk told us they often receive VWAs from COPFS dated several weeks prior to being lodged. If they are lodged late, the clerk has to return them to COPFS to be revised to include an explanation of why they are late. This results in double handling by both COPFS and the clerk.

318. More positively, we heard that sheriffs are open to verbal motions from prosecutors in domestic abuse cases if VWAs have been submitted late or missed. Sheriffs were also open to late changes to special measures where victims had changed their minds about what they wanted. Similarly, a depute told us that they would never start a trial if the victim did not have the special measures they needed.

Types of special measures

319. In the cases we reviewed, VWAs were made for most victims to have a screen and a person from Victim Support Scotland as a supporter. In the 31 cases that proceeded to a trial diet, there were 32 victims:

• 26 victims had a screen and a supporter, the default special measures for a domestic abuse victim in a summary case
• two victims requested a supporter only
• four victims requested a TV link (three of whom requested a supporter in addition to the TV link). For one of these victims, a VWA was initially made for a screen and supporter, but by the third trial diet, this had been amended to a TV link.^[78]

320. Applications for the default special measures are often made because there has been no discussion between the victim and VIA about the victim’s preference. In the cases we reviewed, there was a record of discussion between the victim and VIA about special measures in only nine of the 35 cases in which a trial diet was fixed. No discussion may take place because the victim is satisfied with the default measures specified in VIA’s letter, because they are not supportive of the prosecution generally or, in some cases, because they have not received the letter from VIA saying they should get in touch to discuss special measures. If the victim does not want the default measures, the onus is on them to contact VIA either to request different measures or no measures.

321. Some of the victims we met were not aware of the full range of special measures available to them. They were also often not satisfied with the measures that had been put in place for them. Some victims wanted no measures, and were keen to face the accused in court. Some victims said they had no contact from VIA about special measures, only their advocacy worker. In contrast, other victims said they had good contact from VIA about arranging special measures.

322. VIA officers told us they did not often hear from victims about special measures in summary cases. However, we also heard from victims that where they do make contact with VIA, they do not feel they are being offered an informed and free choice of special measures. This was borne out in some of our discussions with prosecutors and VIA officers.

323. Some VIA officers acted as a ‘gatekeeper’ to special measures rather than a facilitator. There appeared to be an effort – deliberately by some and unconsciously by others – to ensure victims in summary cases only had the default special measures. Some VIA officers said they would not offer alternatives unless they were requested by the victim and sometimes only when the victim had a ‘good reason’ or was somehow perceived as more deserving. We also heard that some VIA officers would resist any requests for a change to the default measures that were made close to the trial diet, saying that they were ‘out of time’. Unless VIA explains the full range of special measures available to a victim and is willing to take forward the victim’s preference, the victim is not making an informed and free choice. This is not the person-centred and trauma-informed approach to justice to which COPFS aspires. One victim felt she had to ‘campaign’ for the special measures she wanted.

324. Advocacy workers echoed the comments we heard from victims. They also felt practice was inconsistent across areas. In some areas, it was rare for VIA to put in place anything other than the default special measures and requests from advocacy workers to discuss victims’ needs went unanswered. They also reported some resistance by VIA to allowing the advocacy worker to be a named supporter for the victim. One victim who wanted an advocacy worker as their supporter was told it was not possible. Instead, she was allocated a supporter she had never met, and the supporter was a different person on each day she attended court.
325. Advocacy workers provided examples of VIA acting as gatekeepers to special measures. In one case, the court had granted a TV link for the victim to give evidence, but VIA later phoned the victim and asked if they would consider a screen instead. In another case, an advocacy worker advised VIA that the victim wished a TV link. VIA contacted the victim directly and persuaded them a screen and supporter would suffice. We noted that some VIA officers appeared to resent what they saw as interference by advocacy workers. In contrast, other VIA officers welcomed the workers’ input. Advocacy workers were clear that in some areas, the service provided by VIA was better, and more person-centred.

326. It was not clear why some VIA officers took this gatekeeping approach. For some, there was a clear training need around victims’ entitlement to special measures, trauma-informed practice and a better understanding of domestic abuse. We also wondered whether a lack of availability of TV links was causing some officers to restrict their use to victims in what they considered more serious cases. This would be short-sighted, as it masks the true demand for TV links that requires to be met by SCTS. Indeed, we heard sheriffs had no issues with granting VWAs for TV links, although they said they did not see many such applications in summary cases.

327. It is important to note that the gatekeeping approach described above was not universal. Some VIA officers we interviewed clearly had no problem moving beyond default special measures for victims who asked. They described focusing on the needs and wishes of the victim, rather than what might be easiest for staff or justice agencies more generally. Their approach was trauma-informed and person-centred, and should be that employed across the entire VIA service (Recommendation 15(a)).

328. Some victims who used screens while giving evidence said they did not know in advance that while they could not see the accused and others, they themselves could still be seen. They were disappointed by the protection offered by the screen and felt it did not make them feel safe or support them to give their best evidence. One victim said that a screen, ‘still leaves a feeling of intimidation… you can still feel that person staring at you’.

329. Victims said a TV link from a remote location was a more effective special measure as it helped manage the anxiety of seeing the accused at court (whether inside or outside the courtroom). One victim said she would have preferred to give evidence this way because not only would she have avoided seeing the accused, but a remote location would have been more convenient to her home, would have helped her manage childcare and would have increased her availability to give evidence.

‘It’s hard enough for a women to get up, get ready and come to court to give evidence. If a woman is going to court and expects a video link, then prosecutors should make that happen.’

330. We also heard of cases where VIA tried to arrange a remote TV link for the victim, but this was not possible because of lack of availability. There were also cases where special measures had been arranged for the victim, but they were not in place when the victim attended court. An advocacy worker told us of a case where a remote TV link had been arranged months before the trial, but was not in place on the day. The trial was adjourned as a result. A victim told us they arrived at a remote site to give evidence, but no staff were present. These errors are frustrating for victims and risk their disengagement from justice process. They also result in delays to case progression. While these issues are not always within the control of COPFS, it should ensure that it feeds back such failures to SCTS with a view to ensuring they do not recur.

331. Building on the piloting of virtual summary trials during the pandemic in 2020, there are plans for a ‘trauma informed domestic abuse court model’.^[79] This model will seek to create specialist online courts to deal with domestic abuse cases, with a view to reducing trauma for victims and moving cases out of the physical courtroom, while making use of technology to manage court business virtually. The delivery timescale for this work is not yet clear. While we welcome innovation in making the justice process more effective and efficient, given the number of victims who told us they would prefer to give evidence by remote TV link, justice agencies could focus in the first instance on ensuring all victims in domestic abuse cases are offered the opportunity to give their evidence virtually, and ensuring there is sufficient capacity to meet demand. This may be a more achievable goal in the shorter term, rather than focusing on the entire trial being virtual (Recommendation 15(b)).

332. Arrangements can be made for victims to give evidence from a remote site outside of Scotland. The victim may have moved away since the incident, and this means they do not have to return to Scotland to give evidence at court. Instead, they can attend a local court in their area and give evidence remotely. Where the victim is abroad, this is arranged by the COPFS International Co-operation Unit. Where the victim is elsewhere in the UK, we heard it varied area to area whether this was arranged by local prosecutors or VIA. We heard that arranging links to other courts in the UK can be complicated, time consuming and can cause delays. If giving evidence remotely is to become more common, COPFS may wish to consider whether a centralised resource would allow this to be done more efficiently, and allow for expertise and a network of contacts in courts across the UK to be developed (Recommendation 15(c)).

Informing victims of the outcome of VWAs

333. VIA does not routinely inform a victim when the court grants an application for special measures. Even where a victim has requested specific special measures and these have been applied for, it is not standard practice to inform the victim if the application has been successful. This means victims attend court to give evidence not always knowing what to expect. This increases their anxiety and undermines some of the benefits special measures are supposed to provide.

334. When special measures are granted, VIA should record this information on the case management system. This means if a victim phones Enquiry Point for an update, the information can be shared with them. However, we heard that in some areas, VIA does not update the system due to backlogs of work.

335. Advocacy workers and victims said they were often aware of what special measures had been requested, but not what had been granted. Advocacy workers said they made enquiries about this to VIA, but often only heard back immediately before the trial diet. This left little time for workers to support victims to prepare themselves for going to court (Recommendation 15(d)).

Recommendation 15

With regard to special measures, COPFS should:

(a) ensure that when victims make contact to discuss special measures, they are offered the full range of measures available. This will allow victims to choose the standard special measure or measures that will help them give their best evidence, or request non-standard measures

(b) work with its justice partners towards ensuring all victims in domestic abuse cases have the opportunity to give their evidence remotely, and that there is sufficient capacity to meet demand

(c) review the process for arranging remote TV links from other nations in the UK and consider whether this should be done by a centralised resource

(d) inform victims about the special measures that have been granted. This information should be provided as early as possible.

Simplified notification procedure

336. Section 6 of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 provides for the simplification of the process for applying for standard special measures for deemed vulnerable witnesses. Section 6 has not yet been implemented. As noted above, COPFS is currently required to prepare and lodge a written VWA with the court for deemed vulnerable witnesses even to use the standard special measures to which they are automatically entitled.

337. Ahead of the implementation of section 6 of the 2019 Act, COPFS and SCTS have been working together to develop an automated process for transferring the information usually contained in a VWA to the court. Rather than preparing and lodging a VWA, COPFS will complete key fields on its case management system and the data will transfer to SCTS. This would result in substantial time savings in drafting and processing VWAs for both COPFS and SCTS staff. Critically, it would free up VIA officers for other tasks. One VIA officer estimated that it could free up as much as 30% of their time if they no longer had to prepare VWAs, get them signed by prosecutors and lodge them with the court. Given the potential efficiencies to be achieved, we would encourage section 6 to be commenced by the government and implemented without delay.

Other measures

338. Aside from standard and non-standard special measures, other steps can be taken to help victims give their best evidence at court and to improve the overall victim experience. These include arranging for the victim to access the court via a separate entrance, court familiarisation visits and allowing the victim to view their statement before trial.

339. Victims were particularly supportive of the idea of separate entrances to court, which can be organised by VIA. This reduces the chances of seeing the accused outside the courtroom, and avoids the possibility of standing beside the accused and the accused’s friends and family while queuing to get into court. Separate entrances are not available at all courts however. Even where they are available, we heard that their use had reduced since the pandemic. We also heard examples of arrangements being made for the victim to use a separate entrance only for the entrance to be locked. COPFS should work with SCTS to ensure such instances do not recur. In one area where the court has no separate entrance, we heard that VIA allow particularly vulnerable victims to attend at their office until it is confirmed the accused is in the courtroom. A VIA officer then escorts the victim to the witness room at court.

340. Court familiarisation visits can help victims prepare themselves for court and know what to expect when they attend court to give evidence. Some victims we met had made visits to the court in advance and found these helpful. Victims are referred to Victim Support Scotland who then organise the visit. Advocacy workers said there were inconsistencies in how referrals were made across areas. In some areas, they could refer a victim directly to Victim Support Scotland, while in others, VIA made the referral.^[80] VIA do not make referrals until after the intermediate diet, when it is clear the case is progressing to a trial diet. However, this can leave insufficient time for the visits to be organised.

341. COPFS may allow a witness to view their witness statement prior to giving evidence. In contrast to solemn proceedings, this opportunity is not proactively offered to witnesses in summary proceedings. While the possibility of viewing a statement is highlighted on the COPFS website, it is not mentioned in any of VIA’s correspondence with victims in summary domestic abuse cases. Some victims are made aware of this by an advocacy worker, but we found some advocacy workers were also unaware of the possibility. Some of the victims we interviewed had viewed their statement before the trial and found this helpful, particularly where they were involved in multiple cases against the accused. One victim described repeatedly rehearsing the domestic abuse incident in her mind in the months between the incident and the trial. She was concerned she would forget important details. She said if she had known she could request to view her statement, she could have avoided re-traumatising herself in this way.

342. Where victims do view their statement, this often happens on the day of the trial although COPFS policy does provide a process for earlier access (one VIA officer told us they would offer to meet the victim virtually and share the statement with them on screen in advance of trial). We heard that reading a statement immediately before the trial may not be the best time. Victims are in a heightened state of anxiety and some may struggle to read the statement in such circumstances. It can also be difficult for prosecutors dealing with multiple cases to find the time to share a statement with a victim.

343. COPFS should consider whether a trauma-informed approach requires it to proactively offer victims in summary domestic abuse cases the chance to view their statement in advance of the trial. This offer could be included in VIA’s initial letter to victims, alongside information about special measures.

Recommendation 16

COPFS should ensure that victims in summary domestic abuse cases are proactively made aware of the possibility of viewing their statement in advance of the trial.

344. In our interviews with victims and advocacy workers, a recurring theme was the lack of childcare which reduced the availability of victims to give evidence at court. Victims were often the sole carer for their children and relied on support from friends and family so they could attend court. We heard that women from some minority ethnic communities struggled in particular to arrange childcare when they had been isolated by their communities for reporting domestic abuse. Victims also talked about repeatedly having to organise childcare when trials were adjourned. They also noted the impact of receiving citations late. For example, a victim receiving a citation on a Saturday for court on a Monday may not be able to organise childcare at such short notice or to inform COPFS of this.

Communication between prosecutors and victims

345. Throughout the life of a domestic abuse case, communication with the victim is key. COPFS should provide them with updates on developments in the case and information about the justice process, and provide reassurance to victims and check whether they are engaged in the process. While much of this communication falls to VIA, there is also a role for prosecutors. Communication between prosecutors and victims may take place:

• prior to the trial when the case is being prepared
• on the day of the trial.

Prior to trial

346. Prosecutors may have contact with the victim while they are preparing cases for trial. While prosecutors should respond to any queries from the victim when VIA is not able to do so, they do not routinely make proactive contact with the victim under the standard approach to preparing summary cases. In some areas, however, initiatives are underway to enhance the engagement between prosecutors and victims during case preparation. This includes in Glasgow and Dundee.

347. In Glasgow, prosecutors working in its Domestic Abuse Unit seek to phone the victim as part of their preparation for the pre-intermediate diet meeting. This welcome initiative began in 2022. The phone call provides an opportunity for prosecutors to provide information to the victim about the justice process and to check how the victim is feeling and address any concerns and provide reassurance. The call is also an opportunity to check whether the victim has been cited, discuss special measures and non-harassment orders, and offer the victim the chance to view their witness statement.

348. Unfortunately we saw limited evidence of these phone calls in the Glasgow cases we reviewed. This may be because the call was not made, because the victim did not answer, or because the call did take place but it was not recorded in the case file. We explore the barriers to successfully making these calls below.

349. In Dundee, COPFS took the opportunity to enhance its engagement with victims as part of its work to implement the summary case management pilot. This has two elements:

• in all domestic abuse cases, prosecutors phone the victim approximately two weeks after the pleading diet and prior to the case management hearing. The purpose of this call is generally similar to that made to victims in Glasgow
• in cases involving a charge under section 1 of the 2018 Act, in addition to the phone call, victims are offered an in person meeting with the trial depute. This meeting should take place around two weeks prior to the trial.

350. In the Dundee cases we reviewed, a phone call was not necessary in six cases as the accused pled guilty at the first calling of the case. Of the remaining 14 cases:

• in three cases, the prosecutor contacted the victim to discuss the case
• in five cases, the prosecutor attempted to contact the victim but was unsuccessful (although two of these attempts were made well outwith the intended timescale)
• in six cases, there was no record of contact or an attempt at contact.

351. There were two cases amongst those we reviewed in Dundee that featured a charge under section 1 of the 2018 Act. In both cases, the victim was offered a meeting with the prosecutor. In one case, the victim took up the offer and, in the other case, the victim declined.

352. With regard to the phone calls made by prosecutors during their case preparation in both Glasgow and Dundee, many of the prosecutors we interviewed in those areas thought calling victims was beneficial. They found the discussions with victims to be helpful. They were able to answer questions and gather information that was useful during case preparation. They were better able to tailor their case preparation as a result. Prosecutors were able to reassure victims that their case was being dealt with and that they were aware of victims’ situations. They felt these discussions alleviated concerns the victims had and encouraged them to engage in the justice process. The discussions also helped them identify those who were not engaged, or at risk of not engaging. Prosecutors were able to explore the reasons for this and provide reassurance or take appropriate action. Prosecutors also felt that these discussions could lead to earlier resolution of a case – being able to share with the defence that the victim was fully supportive of a prosecution sometimes led to a guilty plea. Engaging with victims at an early stage also reduced the pressure on prosecutors to speak to victims at court – prosecutors said it was easier to have a discussion during case preparation than when they were dealing with multiple cases at court.

353. Advocacy workers were also positive about this enhanced engagement with victims during case preparation. None of the victims we interviewed had yet experienced it, but they did tell us how keen they were to discuss their case with prosecutors at an early stage in proceedings.

354. Some prosecutors we interviewed were less positive about contacting victims during case preparation. They were less certain about the benefits of any discussion. They tended to focus on the absence of benefits for their own case preparation, however, and did not consider how the discussions may still have been beneficial for victims.

355. Regardless of how prosecutors viewed contacting victims during case preparation, they told us about barriers they faced to doing this more frequently and more effectively.

356. Most prosecutors were concerned that they lacked time during case preparation to have discussions with victims. They said they often lacked time to prepare properly even without this additional task. Discussions with victims could be lengthy and prosecutors were usually preparing multiple cases at once. This meant they may not get a chance to contact all the victims in their cases, despite their best efforts. Some prosecutors lacked confidence about contacting victims, and said they would appreciate more training and guidance on this. This was linked to the relative inexperience of many prosecutors currently working on summary level cases.

357. Prosecutors highlighted other barriers to successfully contacting victims. These included that some victims have no interest in speaking to prosecutors about the case, and some victims who do not support the prosecution can become abusive towards them. Other barriers included those already highlighted elsewhere, such as the absence of contact information in SPRs and the poor take-up of calls from an unfamiliar number. In the cases we reviewed, we noted prosecutors responded in different ways when victims’ contact information was missing. Some appeared to make no efforts to trace victims, while others searched systems or instructed the police to find contact information. Advocacy workers often know how to contact victims and more use could be made of them.

358. With regard to the poor take-up of calls, we welcomed efforts in Dundee to increase the number of times prosecutors had to try to contact victims. We heard this was having a positive effect. We also welcome efforts being made to monitor take-up – data collected in Dundee in September 2023, for example, showed that successful contact was made with victims by prosecutors in 34% of cases. In a further 45% of cases, unsuccessful attempts were made to contact the victim. COPFS could do more to improve the take-up of calls, including by working with victims to understand why they may not answer and what might increase the chances they will. Prosecutors could also be encouraged to share a direct dial number when they leave messages for victims. In Dundee, we heard they usually provide the Enquiry Point number and this can delay or inhibit victims responding to them.

359. With regard to the meetings with victims that take place in Dundee in cases with a charge under section 1 of the 2018 Act, not many had yet taken place. VIA officers attend these meetings alongside prosecutors and they were very positive about them. They felt they provided victims with a safe space to talk openly with prosecutors. VIA officers also found watching the interaction between the prosecutors and victims to be a valuable learning opportunity that they could use in their own contact with other victims.

360. In all their contact with victims, one challenge faced by prosecutors is the need to convey their role as acting in the public interest rather than being a representative for the victim. While the interests of victims and the public interest may sometimes align, this is not always so. This is not always well understood by victims and even by some advocacy workers. This can lead to disappointment in how prosecutors manage cases. While we expect there to be greater contact between prosecutors and victims in future, there is a risk this may generate even more confusion about the proper role of prosecutors. This risk requires to be managed.

Recommendation 17

COPFS should ensure that in all summary domestic abuse cases, prosecutors seek to make contact with the victim as part of their early case preparation. Prosecutors should have sufficient capacity to carry out this task effectively.

At trial

361. Victims consistently told us that they wanted to meet the prosecutor conducting their case at court. Prosecutors recognised the importance of meeting victims, even if simply to introduce themselves and help put them at ease. However, many prosecutors said they did not always get a chance to discuss the case with the victim or even meet them briefly. While some prosecutors always tried to do so, for others it did not appear to be part of their standard practice.

362. Prosecutors described various barriers to meeting victims at court:

• witnesses are cited for 9.45am and the court starts at 10am, leaving little time for prosecutors to meet victims or follow up on those who have not attended
• prosecutors are juggling many other demands on their time, including the need to engage with defence agents
• summary court loadings can be high and many of these cases relate to domestic abuse. It may be impossible for prosecutors to meet with all the victims or other vulnerable witnesses in their cases
• during the course of the day at court, prosecutors can seek adjournments so they have time to meet with victims however not all sheriffs are supportive of this. We heard that sheriffs in the Glasgow Domestic Abuse Court were more consistently amenable to adjournments for this purpose.

363. The difficulties prosecutors face in meeting victims at court was highlighted in a 2017 review of victim care. Little appears to have changed in the interim. That review noted that it was easier for prosecutors in higher courts as court loadings were lower. In summary courts, there was a tension between providing a service to victims and the responsibility of the presiding judge to ensure the best use of court time.^[81]

364. Another issue which may contribute to prosecutors not being able to meet victims at court or having more perfunctory meetings is that many prosecutors in summary cases are less experienced. They may find it harder to juggle meeting victims with trial management and feel less confident in requesting adjournments for this purpose.

365. Advocacy workers commented how beneficial it was for domestic abuse victims to meet the prosecutor at court, noting it made victims feel more human and less like a ‘piece of evidence’. While they appreciated the efforts prosecutors made, they also noted that victims felt discussions were rushed. Given the barriers prosecutors in summary courts face when trying to engage with domestic abuse victims on the day of trial, consideration should be given to making contact with victims as part of their final trial preparation, if they have not already done so. Other ways of reducing pressure on prosecutors on the day of trial, while also meeting victims’ needs, should also be considered. If there has been effective engagement with the victim at an early stage in case preparation (in line with Recommendation 17), this may reduce the need for further engagement immediately before the trial.

Recommendation 18

In summary domestic abuse cases, COPFS should address victims’ desire to speak with the trial prosecutor in court. To alleviate the pressure on prosecutors at court, this could include requiring prosecutors to make contact with victims during trial preparation to introduce themselves and address any outstanding issues. Prosecutors should have sufficient capacity to carry out this task effectively.

366. Prosecutors are generally engaged all day in court. Where cases are adjourned or pleas are considered, they may not be able to step away from court to speak with or update victims.

367. Some prosecutors said they would speak to victims about proposed pleas, while others would not. While prosecutors should not pass responsibility for the decision about a plea to the victim (we heard of this happening in one case), it can be useful to discuss a plea with the victim and ascertain their attitude towards it. This can be a factor prosecutors then take into account when deciding how to proceed in the public interest, but prosecutors have to be clear with the victim that the final decision is a matter for COPFS. Many victims and advocacy workers considered that a plea could be a positive development. It meant the victim did not have to give evidence. However some pleas are only agreed on the day of trial and, by this stage, many victims have prepared themselves to give evidence and have waited considerable time to do so. They can feel disappointed the trial is not going ahead and that they will not be heard. Victims were also frustrated when pleas were agreed to reduced charges – they felt this emboldened the accused and made the accused feel that he had gotten away with some offending.

368. Victims and advocacy workers regularly told us of difficulties in finding out the nature of any plea. They also said it was difficult to find out the reasons for any adjournments. Again, this was often because prosecutors were still engaged in court and not able to speak to victims about the adjournment. However, we also heard that victims and advocacy workers were often not told about the reasons for adjournments even when they made contact with prosecutors or VIA in the following days. They would either be told the information could not be shared or they would simply receive no response to their enquiry. This was one of the most common frustrations expressed during our interviews. Not knowing why cases had been adjourned, sometimes repeatedly, left victims at risk of disengaging from the process. A prosecutor described a case to us in which the victim was adamant she would not return to court after the case was adjourned on a defence motion. On that occasion, the prosecutor had time to explain what had happened, resulting in the victim changing her mind, but noted they would not have time to do this in all cases.

369. We also heard that victims could leave court with no one having explained to them the final outcome in the case. For example, in one case where a victim had given evidence, the sheriff found all charges not proven. Neither the victim nor the advocacy worker could understand why. No one from COPFS was available to explain it to them. When they are able to get in touch with VIA, VIA officers will often repeat what a prosecutor has written in their court minute. This has limited value as phrases such as ‘insufficient evidence’ or ‘not in the public interest’ are meaningless to many without further explanation and context.

370. We also heard of positive practice by prosecutors. One victim said the prosecutor in her case offered to meet her after proceedings to explain the outcome which she appreciated. When they could not get away from the courtroom, prosecutors would also ask SCTS staff to advise victims what had happened in a case, pass their contact information to the victim, or to say that if they wanted to wait, the prosecutor would speak to them when they were free.

371. As demand on summary prosecutors has increased over the years and expectations are higher about the service provided to victims and witnesses, consideration should be given to how victims’ need for and right to information can be met. Various options could be considered, including a more proactive and prompt role for VIA in updating victims. Consideration should also be given to allocating VIA resource to courts, to assist with communication in real time and to relieve the pressure on prosecutors. They could also assist with sharing statements with witnesses to read.^[82]

372. A final barrier to communication between prosecutors and victims at court is the lack of appropriate accommodation in many courts. Often prosecutors require to discuss sensitive issues in open areas or in corridors. This is not conducive to an effective discussion.

General communication

373. As well as considering communication between prosecutors and victims, we considered how COPFS generally communicates with victims in domestic abuse cases. Much of this communication falls to VIA, although victims will also often come into contact with Enquiry Point. At paragraph 258, we set out the key stages in summary domestic abuse cases where VIA will generally proactively contact the victim. This is the minimum expected level of contact. There may be a need for additional contact depending on the circumstances of the case, and other contact may take place where this is sought by the victim.

374. In the 60 cases we reviewed, we assessed the extent to which the 61 victims were advised of key dates in their case:

• 20 (33%) victims were fully or mostly advised of the key dates in their case
• 27 (44%) victims were advised of some key dates
• 14 (23%) victims were not advised of key dates at all.

375. On this measure, the service provided to victims in Glasgow and the Rest of Scotland was broadly similar. However, the service provided to victims in Dundee was worse (only two victims in Dundee were fully or mostly advised of key dates, and nine victims were not advised of any key dates at all) (Recommendation 19(a)).

376. In the cases we reviewed, we also noted that there were key stages where VIA does not routinely make contact with the victim. These included:

• where a case is continued without plea. A case could be continued without plea on several occasions. In such circumstances, months could pass where a victim knows from the police that a case has been reported to COPFS but without them receiving any update on progress
• where a case is continued at the intermediate diet to the trial diet
• where an accused pleads or is found guilty, VIA informs the victim of the outcome and if sentence has been deferred. The court may defer sentence several times but VIA will only inform the victim of the first deferment and the final sentence. Several months may pass in the interim where the victim is unaware of developments.

377. Prosecutors we interviewed felt that contact with victims was insufficiently frequent. They saw cases where there was VIA contact with the victim at the beginning and end of a case, but nothing in the interim. They felt this provided victims with insufficient support. Victims we interviewed also felt there could be more communication from VIA. Some said they had received no communication at all, or that communication was missing at key points in the case (Recommendation 19(b)).

378. As well as there being key stages of the case when victims were not updated, there were also key matters about which victims were not always informed. These issues were raised frequently in our interviews with victims and advocacy workers and included not being told of the reasons for adjournments, for discontinuing or not calling cases.

379. We also heard that victims may not be told the precise nature of the charges against the accused. This meant they were unsure what they would be asked about when giving evidence, heightening their anxiety about going to court. It also presented challenges for victims involved in multiple cases – one victim told us they had a court date approaching but had no idea which incident it related to. Similarly, victims were often not told about the charges to which the accused had pled guilty (which may differ from those on the complaint). A VIA officer told us they were not permitted to discuss charges with the victim without seeking clarification from a prosecutor. Other VIA officers said they would discuss initial charges, but would not discuss any aspects of a charge which have been deleted following a plea. This may result in the victim being less informed about the case than the accused (Recommendation 19(c)).

Overall quality of communication

380. We assessed the overall quality of communication with victims in the cases we reviewed. This covered all and any communication between COPFS and victims (including communication with prosecutors, VIA and Enquiry Point). We assessed whether the overall quality was good, reasonable or unsatisfactory for each of the 61 victims:

• for two (3%) victims, the communication was good
• for 10 (16%) victims, the communication was reasonable
• for 49 (80%) victims, the communication was unsatisfactory.

381. Again, the quality of communication in Glasgow and the Rest of Scotland was broadly similar. In Dundee, the communication with all 20 victims was assessed as unsatisfactory.

382. Where cases were assessed as good, this was because the victim was contacted at the key stages of the case and contact was timely and accurate.

Case study – communication assessed as good

The victim was advised by VIA by phone of the special bail conditions imposed following the accused’s first appearance in court. An initial letter was also sent to the victim the following day. The accused pled guilty. The victim was advised of the final outcome in a letter sent two days after the plea was tendered in court. All details in the letters were accurate.

383. Where cases were assessed as reasonable, it was because the communication was good in places, but there were also either some missed contact or delays or errors in contact.

Case study – communication assessed as reasonable

VIA advised the victim of the outcome of the first calling of the case and the special bail conditions imposed by phone. An initial letter was sent the same day. The accused pled guilty at the trial diet. A letter was sent two days later advising the victim of this and of the date of the deferred sentence. Following sentencing, a letter was not sent to the victim to advise of the sentencing outcome until 25 days later. During this time, the victim was unaware that the special bail conditions had come to an end, and that an NHO had been made.

384. Where communication was assessed as unsatisfactory, it was because either no contact was made when it should have been, or any good examples of contact were substantially outweighed by missed contact or delays or errors in contact.

Case studies – communication assessed as unsatisfactory

In one case, VIA advised the victim of the outcome of the first calling of the case and the bail conditions imposed by phone. An initial letter was also sent. Despite being a summary case management pilot case, no contact was made with the victim by the prosecutor during case preparation. The accused pled guilty at a case management hearing. At the conclusion of our case review, several months after the hearing, VIA had still not informed the victim of the plea or provided any information about the sentencing outcome.

In another case, the accused pled guilty at the first calling of the case. The case was referred to VIA but was never acted upon. There was no communication between VIA and the victim. There was no information in the case to suggest the victim’s views on an NHO had been ascertained.

385. Examples of missed contact or delays or errors in contact included:

• no letters being sent to the victim at all
• letters at key stages not being sent, including victims not being informed of the final outcome of the case
• substantial delays in letters being sent
• poor quality letters, including errors, poor wording or the omission of key information
• letters not being translated when needed
• letters that refer victims to the COPFS website but which use broken links or which provide a link to the website generally rather than the specific information needed
• not advising victims of applications for bail review
• not advising victims of adjourned trials
• not responding to communication from victims or advocacy workers, or substantial delays in responding
• victims not being asked for their views on NHOs
• VIA not following instructions from prosecutors to update the victim
• not taking account of the victim’s additional support needs in communication.

386. Some of these issues have already been highlighted elsewhere in this report, while others are explored in more detail below.

Letters

387. Much of VIA’s communication with victims is through letters sent by post. Template letters covering key stages in a case are available to VIA officers to adapt and tailor to the circumstances and needs of individual victims. If care is not taken when adding or removing information from the templates, the resulting letter to the victim can be difficult to read and understand or even inaccurate.

388. VIA officers told us the templates are lengthy and can be challenging to edit taking into account the various scenarios that can arise in a case. They said they had little guidance on how to complete the templates and that training for new staff could be onerous. Quality assurance of letters sent to victims was limited, meaning opportunities to correct letters and to learn lessons were lost.

389. Some victims felt that the letters from VIA were acceptable. One described them as ‘factual and to the point’. Other victims felt the letters were too long. It was suggested that a glossary of legal terms enclosed with the letter would be beneficial, as would more detailed information about the case. For some domestic abuse victims involved in multiple cases, it was not always clear which incident a letter referred to. Support organisations said they often had to explain the letters to victims, as did staff working within the Enquiry Point who often received queries about the letters from victims.

390. The need to improve the quality of letters to victims has been a recurring theme in our inspections over several years. While efforts have been made to improve them, they continue to attract adverse comment and we continue to find poor quality letters in the cases we review. We therefore welcome a commitment to revise template letters as part of COPFS’s VIA Modernisation Programme (see paragraph 427). This should be supported by improved guidance, training, additional support for new VIA staff and quality assurance of correspondence sent by VIA.

391. Advocacy workers felt that VIA should explore the use of other methods of communication, such as emails and text messaging, and should make more effort to establish a victim’s preferred method of contact.

Accessibility and responsiveness of VIA

392. Many victims and advocacy workers highlighted difficulties in making contact with VIA. When they tried to phone, email or write to VIA, they often did not receive a timely or any response. They felt that in some areas, there was a reluctance by VIA to give out direct contact information, and they often required to make use of generic mailboxes or Enquiry Point to reach VIA. However, Enquiry Point operators also reported difficulties in making contact with VIA (see paragraph 440).

393. One advocacy worker cited a case where she had emailed VIA four times over several months about a victim’s case and only received a response on the day before the trial. Other advocacy workers provided similar examples. Advocacy workers were often trying to share victims’ views and wishes with COPFS, but got no response from VIA and felt they had no means to escalate the issue. They felt VIA acted as gatekeepers to bringing issues to prosecutors’ attention or having discussions with prosecutors.

394. In contrast, some advocacy workers were positive about the accessibility and responsiveness of their local VIA officers. This was often where regular meetings and shadowing opportunities between a support organisation and VIA were in place.

395. Victims were frustrated that they had to initiate contact with COPFS to find out more about their case, rather than receiving information timeously. One victim said they had written to COPFS repeatedly but never received a response.

396. A common issue we heard in interviews is that despite VIA being informed of a change of address by the victim or an advocacy worker, correspondence and citations continued to be sent to a victim’s previous address. This was because the address requires to be updated on two systems, and this was only being done on one.

Equality issues

397. Victims of domestic abuse, in addition to being deemed vulnerable due to the nature of the offending, may also have additional support needs. Additional support needs vary, but could include the victim not speaking English, not being able to read, or having a learning disability. We considered the extent to which additional support needs were taken into account by COPFS in its communication with victims.

398. In the cases we reviewed, there were 13 victims who we considered had or likely had some form of additional support need based on either the information in the SPR or other information held in the case record. In most of these cases, we considered there was more that could have been done to find out how the victim could be supported and to deliver that support. For example:

• in two cases, COPFS was aware that an interpreter was required for the victim but there was no evidence of letters or citations being translated
• in one case, the victim used a wheelchair and repeatedly contacted COPFS to request a taxi to court. It was not until the fifth scheduled trial diet that enquiries were made into whether the victim could give evidence via another means
• in one case, the victim had learning difficulties. They indicated a preference for contact by phone, but VIA continued to send letters.

399. In contrast to these cases, we also heard of others where VIA officers had taken steps to meet the additional support needs of victims. For example, one officer was working alongside a support agency to help a victim with poor mental health through the justice process. In another case, special measures were tailored to allow a victim with particular needs to give evidence via a TV link in their home.

400. Staff are able to use an interpretation service to support communication with victims who require it. While Enquiry Point operators told us they made frequent use of it, confidence in its use was low among prosecutors, VIA officers and administrative staff. This requires to be addressed.

401. We interviewed an advocacy worker who was dedicated to providing support to women from Black, Asian and Minority Ethnic communities. She felt there was more that justice agencies, including COPFS, could do to understand the additional barriers they may face in speaking out against abuse and their support and communication needs. For example, some of the women she supported were reluctant to ask for correspondence in a different language, and were reluctant to say they did not understand the information being given to them. If agencies had a better understanding of this, they could take more steps to confirm that information has been understood, and to refer them to specialist support agencies.

402. Generally, it appeared that the additional support needs of victims in summary domestic abuse cases were not always being addressed timeously or at all. The backlog of work faced by VIA officers (described below) will no doubt be contributing to this, with pressures to deal with cases as quickly as possible rather than taking the time to check and provide what victims need. We heard of a ‘one size fits all’ approach being taken, rather than tailoring a service to suit victims. This not only contributes to a poor victim experience of the justice process, but may lead to cases being delayed and court time wasted (Recommendation 19(d)).

Recommendation 19

In relation to communicating with victims in summary domestic abuse cases, COPFS should:

(a) take immediate steps to ensure that victims are receiving basic information about their case, including its outcome, timeously

(b) work towards providing information to victims at additional key points in the progression of cases

(c) develop guidance for all staff to ensure that there is consistent practice regarding what a victim is told about charges and accepted pleas

(d) ensure that staff are able to identify and respond to the additional support needs of victims.

Why is communication unsatisfactory?

403. The issues we identified in our case review regarding the overall quality of communication between COPFS and victims were echoed in our interviews with victims and advocacy workers. During our interviews with COPFS staff, we sought to understand why the overall quality of communication with victims was so unsatisfactory.^[83]

404. We heard that across COPFS, VIA officers working on summary cases have backlogs in their work. They have prioritised updating victims about the outcome of the accused’s first appearance in court and whether they are remanded or released with bail conditions. Other work has been delayed as a result. While this has included applications for special measures in some areas, it mostly relates to updating victims at the key stages in their case, including the outcome of intermediate, trial and sentencing diets. It also means VIA officers have either not been responding to queries from victims or advocacy workers or have been delayed in responding. We interviewed VIA officers from across Scotland – all reported backlogs, although these varied in scale from four weeks to five months. The impact of such backlogs on a victim in a summary domestic abuse case is substantial – an entire case could be concluded before the victim hears about the outcome of an adjourned intermediate diet.

405. A lack of management data about the work of VIA meant we were unable to accurately compare the scale of the backlogs across different offices, to establish exactly when the backlogs arose or to understand why the backlogs were worse in some areas compared to others.

406. There were inconsistencies in how VIA officers were choosing to manage the delays caused by the backlog in individual cases. There appears to have been no national leadership on this issue. On being alerted to a victim requiring to be updated about a case that had called in court, VIA officers in some areas would simply send the relevant update even if the court date had occurred some time previously and the case had progressed in court in the meantime. This was confusing for victims who might be aware of subsequent developments by, for example, being cited for trial or hearing from advocacy workers, the accused or members of their community. In other areas, VIA officers would take the opportunity to establish the latest development in the case and send a letter only about that. More sensibly, we heard from some VIA officers who would send a letter about the latest position, but also incorporate any other information the victim should have received previously.

407. One VIA officer described coming across a case in which a final outcome letter required to be sent. The outcome had been finalised three months previously. They were advised by a colleague not to bother sending the letter as too much time had passed. The VIA officer was concerned that this meant the victim would remain unaware of the outcome of the prosecution.

408. The impact on victims of not being kept up to date about their cases, and sometimes not being informed of the final outcome, was substantial. Our findings about communication explained why VIA was largely absent from conversations we had with domestic abuse victims. Overall, most victims felt they did not receive enough information about their case, and would prefer to be contacted more frequently and more timeously after key developments. They said:

• they did not receive much information beyond the initial letter from VIA
• there were long gaps in communication from VIA
• they waited a long time to find out the final outcome of the case. Often the case was concluded and the accused no longer subject to bail conditions for a significant period before the victim was informed.

409. Victims were frustrated that they had to initiate contact with COPFS to find out about the progress of their case and did not always receive a response. Many victims said they relied on their advocacy workers for information in the absence of updates from VIA. We were concerned about those victims who are not engaged with support organisations (only 26% of victims in the cases we reviewed appeared to be receiving support from a third sector organisation). Poor communication risked victims becoming unsupportive of the prosecution and losing confidence in VIA, COPFS and the justice system overall. One victim said, ‘No wonder women don’t report domestic abuse, if this is how the justice system responds’.
410. Most VIA officers were aware they were not providing a good quality of service to victims. They were frustrated, demoralised and keen to do a better job. One officer said she felt ‘completely overwhelmed’. Some told us that they had considered leaving VIA. They regretted that they did not have more routine contact with victims and the opportunity to develop better relationships with them. This was an aspect of the job that they enjoyed and that motivated them. We were concerned, however, that some VIA officers did not seem to fully grasp the negative impact the backlogs might have on victims. They seemed to think that if a victim wanted an update, the victim could just initiate contact with VIA.

411. VIA officers said backlogs were caused by a lack of resources and an increasing workload since the pandemic. Staff felt that vacancies were not being filled when VIA officers retired or moved to other roles in COPFS. While resourcing for COPFS as a whole has increased substantially since the pandemic, VIA officers (and prosecutors) working on summary cases felt the additional staff were being allocated to specialist teams rather than high volume summary business.

412. Some efforts had been made to address the backlogs, however it was not clear whether these were effective. These efforts could also have unintended negative consequences.

413. Traditionally, VIA officers working on summary cases were attached to local procurator fiscal offices. They dealt with all the summary work of that office and provided support and information to victims in local cases. Some areas have moved away from this model towards area-based working. The area to be covered was generally an entire sheriffdom. Under this model, VIA officers are assigned specific tasks on a rota. Each day, they carry out the task for the whole sheriffdom (tasks could include updating victims about the first calling of cases, monitoring the mailbox or drafting letters).

414. Area-based working on a rota system was introduced to drive efficiency and provide more resilience and flexibility. Staff can be easily reassigned to tasks that require more resource. Some managers told us this model was helping to reduce the backlogs. While reducing the backlogs is imperative, we also heard that many VIA officers were dissatisfied with this way of working. They felt:

• there was a loss of knowledge of local cases and victims
• there was no opportunity to develop relationships with victims and they were unable to deviate from their rota duties to support a victim they had dealt with previously
• VIA officers’ direct contact details were no longer being added to letters, forcing victims to contact VIA through Enquiry Point
• there were lost opportunities to discuss cases with local prosecutors (a VIA officer based in the Kirkcaldy office, for example, had likely never met the prosecutor managing the case in Dundee).

415. In areas that had recently moved to area-based working, some VIA officers felt the change had been managed poorly, they had not been consulted and had not had an opportunity to feed back on how it was going. They also noted that different offices had different processes, and this was not sufficiently recognised when the change was being planned (the most obvious example of this was that VIA officers working outside of Dundee were expected to deal with cases falling within the summary case management pilot but were not fully briefed on key differences in how those cases should be managed).

416. We were concerned that area-based working appeared process-driven rather than person-centred, and seemed at odds with the COPFS commitment to put victims at the heart of the justice system and a trauma-informed approach.

Summary case management pilot (Dundee)

417. When we assessed the overall quality of communication in the cases we reviewed, we were disappointed by the poor results. While the results were poor across all three of our case samples, it is notable that the quality of communication with all 20 victims in Dundee was assessed as unsatisfactory. This was unexpected given the introduction of the enhanced engagement model as part of the summary case management pilot. Despite this engagement between prosecutors and victims featuring in some of our cases, we did not consider it sufficient to rectify errors or delays in the minimum service that VIA should have provided to victims.

418. The barriers to effective communication between VIA and victims described above, including backlogs and a lack of resources, applied equally to Dundee. We considered there were also additional issues that affected the work of VIA in Dundee.

419. We heard that it was ‘business as usual’ for VIA in relation to cases falling within the pilot. This was not accurate however and the role of VIA appeared to have been overlooked in planning and implementing the pilot. VIA processes and template letters, for example, may not have been fully aligned with the different ways in which pilot cases progressed. For example, pilot template letters sent to victims implied only one case management hearing would take place, but this was often not so. It was also possible that, because of the different way cases progressed, victims in Dundee were more likely to experience prolonged periods with no contact. Moreover, because of the move to area-based working, VIA officers from outside Dundee managed some of the communication with victims in pilot cases, but their awareness and understanding of the pilot was more limited. This meant the wrong template was sometimes used as the basis for letters to victims, with the standard initial letter being issued to victims rather than one tailored to the pilot. This misled victims as to how their case would progress.

420. Given the significant investment of time and resources from COPFS into successfully implementing the pilot, more thought should have been given to how backlogs in VIA’s work would affect the pilot and VIA’s ability to, for example, update victims after each case management hearing. It is unfortunate that these issues undermined the more positive work being done in respect of enhanced engagement between prosecutors and victims in pilot cases.

The way forward

421. For some victims, advocacy and other support organisations stepped in to fill the gap in communication from COPFS. Victims highlighted the importance of advocacy workers and many thought they were critical in helping them navigate and understand the justice process. One victim described their support organisation as being, ‘like scaffolding, holding me up’. One victim said they would have disengaged from the justice process had it not been for the advocacy worker. Another was worried about what happened to those victims without this kind of support.

422. While it is encouraging to hear of the work being done by support organisations, not all victims are referred for support or take up the offer of support. There will also be geographic variations in the availability of certain kinds of support or in the availability of specialist support targeted at particular groups. Moreover, however good support is, COPFS has statutory obligations in respect of victims that must be delivered.
423. While there had been attempts to address backlogs in VIA’s workload locally, we were concerned that there did not appear to be a wider appreciation of the extent of the unsatisfactory service being delivered by VIA. Three issues may have contributed to this.

424. The first is that there is no national leadership within COPFS for VIA. The service is largely delivered locally, with VIA staff being supervised by local managers. This contributes to inconsistency in practice, processes and decision making across areas. It also limits any national monitoring or oversight of the service being delivered by VIA. This requires to be addressed.

425. The second is that there is a lack of management data about the service provided by VIA. Management data would help in monitoring the demand for the VIA service, and in monitoring whether demand is being met and in what timescales. Performance should be compared across areas. Senior leaders should be sighted on this data. The data should inform decisions about the resourcing needed to deliver the VIA service and where and how resources should be allocated.

426. The third issue is that there appears to be little quality assurance of VIA’s work – this means that not only is the volume of work not being monitored, but neither is its quality.

427. The first and second issues have been recognised as part of COPFS’s VIA Modernisation Programme. This programme was announced in November 2021 with a view to improving the VIA service. The expected completion date for key aspects of the work is April 2024. A range of workstreams have been identified, including a review of VIA processes, a review and revisal of template letters, the creation of an IT solution to monitor and manage VIA workload, and a review of the governance and structure of VIA. We welcome these initiatives.

428. However, we were concerned that the modernisation programme did not go far enough and did not seem to be getting to grips with some of the key issues highlighted above. In light of the current level of service being delivered, any review should be focusing on the more basic issue of whether VIA is fit for purpose in summary level cases. We were therefore pleased that, in response to our sharing early findings from our inspection and following an internal review of the programme’s objectives, COPFS indicated that a second, more fundamental phase of the programme, exploring a redesign of the service, will commence in April 2024.

429. A more fundamental review of VIA should consider its purpose within the context of the broader strategic aims of COPFS and the justice system. COPFS has committed to putting victims at the heart of the justice process, and to taking a more person-centred and trauma-informed approach. This will require a significant shift in how VIA currently approaches its work at summary level. It will require equipping staff with training, the tools and the time to do their job effectively. From the cases we reviewed and the people we interviewed, a picture emerged of a struggling and under-performing service. It is staffed by many who are committed to delivering a better service, but who feel constrained and frustrated by the limitations of their role and their workload. Too often, VIA appeared to be more of a letter-writing service than one in which staff proactively support and engage with victims in a way that is tailored to individual need. This must change. This will improve communication with victims and witnesses, but will also contribute to better case preparation and higher job satisfaction among VIA officers.

430. Any review of VIA should consider how it is presented to victims. Many victims are confused about the role of VIA and are not clear that it is part of COPFS. Sometimes they were under the impression that no one from COPFS had been in touch about their case when they had in fact received a call or letter from VIA. VIA was sometimes confused with Victim Support Scotland.

431. We raised this issue in a previous inspection and recommended that COPFS consider rebranding VIA to emphasise its role within COPFS.^[84] COPFS considered the issue, but decided that it could achieve clarity about the role of VIA by means other than rebranding.^[85] Despite efforts being made to achieve this, it was clear from our interviews that they have not yet been successful. COPFS should revisit this issue as part of its review of VIA’s purpose.

Recommendation 20

COPFS should review whether the current VIA service in summary cases is fit for purpose and whether, in its current form, it will be able to deliver a person-centred and trauma-informed service to victims. As part of its review, COPFS should consider the need for effective national leadership and oversight of the VIA service.

432. When we asked victims about how they would improve the VIA service, one of the most common responses was that they would like a single point of contact at COPFS. In light of this feedback and given the strategic importance of domestic abuse, we believe COPFS should provide domestic abuse victims in summary cases with a dedicated VIA officer. This will provide victims and their advocacy workers with a single point of contact for any queries and allow VIA staff to more effectively support victims and monitor their cases. It would also avoid victims having to repeat their stories and circumstances to multiple individuals, which was another recurring theme in our interviews. Unfortunately, providing a dedicated officer may not be achievable in the short term given the current state of the VIA service. Nonetheless, COPFS should work towards this aim.

433. Dedicated VIA officers were made available to victims in more serious cases following a recommendation made by the inspectorate in 2017.^[86] We believe a single point of contact would be particularly beneficial to victims in domestic abuse cases because of the particular nature of the offending and how it affects victims. Victims in domestic abuse cases are more likely to be repeat victims. Almost half of the victims in the cases we reviewed were described in SPRs as hostile, reluctant or non-engaging. We have already noted that victims in domestic abuse cases may not be supportive of a prosecution or may not engage with the justice process for a range of reasons, and that their position may change as the case progresses. We have also noted that more needs to be done to reassure and support victims. While this can be done by prosecutors during their case preparation, there is also a role for VIA. However, opportunities for VIA to provide reassurance and support are being missed in many areas. Many VIA officers expressed a desire to do more proactive work to support and engage victims, but felt unable to do so because of backlogs in completing basic tasks. Some VIA officers also felt that to provide this support more effectively, they would need more training.

434. Advocacy workers said that where VIA officers had been able to take the time to provide information, support and reassurance to victims, this had a hugely positive impact. Keeping victims informed of adjournments and other developments in the case also helped maintain their engagement.

Recommendation 21

COPFS should provide victims in domestic abuse cases with a dedicated VIA officer.

Witness Gateway

435. For several years, COPFS has been working to deliver the ability for victims and other witnesses to track the progress of their case online. In evidence to the Justice Committee in 2016, it stated this work was underway.^[87] We understand a ‘Witness Gateway’ is being piloted in early 2024, with a view to rolling it out further. While the scope of what would be delivered online appears to have narrowed since it was originally mooted, we understand that in its initial phase, Witness Gateway will allow for witnesses to access their statements online, confirm availability for trial diets, and express a preference as to how they want to be updated about their case.

436. As long ago as our Annual Report 2017-18,^[88] the inspectorate welcomed this development. We hope that its full delivery is now imminent, that it will improve the victim and witness experience and that it will free up COPFS resources to be re-invested in other aspects of its service to victims.

National Enquiry Point

437. Enquiry Point is COPFS’s customer contact centre. It is the first point of contact for many victims seeking information about their case. It can be contacted via phone, email, letter or text. Enquiry Point comprises a team of operators who will either deal with the enquiry or redirect the enquirer to the most appropriate person or team within COPFS.

438. Enquiry Point can play a substantial role in domestic abuse cases. There was a record of contact between victims and witnesses and Enquiry Point in 40% of the cases we reviewed. Enquiry Point operators felt that more than half of the calls they received related to domestic abuse cases. Enquiries generally relate to:

• the accused’s bail conditions
• the outcome of cases calling in court
• the reasons for adjournments
• victims wishing the prosecution to be ‘dropped’
• victims seeking an excusal from giving evidence in court
• victims asking for the content of and jargon in VIA letters to be explained
• victims asking for special measures to be explained.

439. Many letters to victims from VIA now include contact details for Enquiry Point rather than the VIA officer who wrote the letter. If victims have questions about the letter and want to respond to its contents, they must contact Enquiry Point in the first instance. This has the effect of shifting demand from VIA to Enquiry Point. Enquiry Point operators aim to answer enquiries themselves, rather than transferring the victim to VIA. While operators are keen to resolve enquiries at the first point of contact, they do not have the same training as VIA officers and do not have immediate access to local prosecutors in the same way that many VIA officers do.
440. Enquiry Point operators are keen to resolve enquiries at the first point of contact because this is in line with effective customer service standards. However, they are also avoiding the need to transfer callers to VIA because they often receive no response. We heard that there has been an emerging pattern in recent years of some VIA officers not accepting transferred calls from Enquiry Point. We heard that this varied across offices, with VIA officers in Dundee, for example, always being willing to accept calls. This was not a universal approach, however, with Enquiry Point operators estimating that the majority of their calls to VIA are not answered. As a result, operators feel obliged to do what they can to help callers, but this may result in them straying beyond their field of expertise. We were concerned that VIA officers were not fulfilling this aspect of their role, and that this shift in demand from VIA to Enquiry Point had not been appropriately planned for or supported by way of guidance and training.

441. While this situation may have arisen due to the backlogs of work experienced by VIA noted above, it cannot continue and is a further indicator of VIA not providing a minimum level of service. The issue of VIA staff not accepting calls from Enquiry Point has been recognised by senior leaders and staff have recently been reminded of the standards of service expected from them. We welcome this reminder, although more needs to be done to address the underlying cause of the issue.

442. When a victim contacts Enquiry Point, a record of their enquiry and the response given is logged by the operator on the ‘witness contact’ screen on the case management system. If the enquiry requires further follow up or requires to be brought to the attention of the prosecutor or VIA, the operator sends an email to the relevant office dealing with the case. We heard that operators have been told not to add the enquiry or the record of the contact to the VIA minute sheet. The minute sheet is held in the electronic case file and is a record of contact with the victim. This means that a record of contact with the victim is kept in (at least) two separate places on COPFS systems.

443. Enquiry Point operators were under the impression that the information they logged on the witness contact screen would be seen and used by prosecutors and VIA. This was not so – we were concerned that COPFS staff outwith Enquiry Point were generally unaware enquiries were recorded and where they were recorded. This meant they did not use the information when dealing with the case.

444. There was a record of calls to Enquiry Point in 24 (40%) cases we reviewed. The enquiry was from the victim in 16 cases. In these 16 cases, almost two thirds had more than one call from the victim. In three cases, there was a record of the victim making five or more calls to Enquiry Point.

445. Because most prosecutors and VIA staff were unaware of the information recorded in the witness contact screen and therefore not checking this, key information was being missed. Sometimes, the information was simply evidence of the victim’s engagement in the case. Other times, the information was key to the preparation and management of the case either by prosecutors or VIA. There were missed opportunities to deal with issues prior to the case calling in court.

446. Where Enquiry Point also sent an email to the local office, the information should have come to the attention of prosecutors or VIA through that means. Staff in the local office should import the email to the case file where it should be seen by those dealing with the case. However, there was often no record of an email being imported and no record of, for example, VIA responding to the victim’s enquiry.

447. Examples of information we found in the witness contact screen included:

• a victim advising COPFS of their views on bail conditions. Enquiry Point also sent an email to the local office with this information, but there was no record of the email in the case file. A bail review hearing was subsequently adjourned to establish the victim’s views on bail conditions despite this information already being known to COPFS
• a victim requesting bail conditions in respect of her children. Enquiry Point told her to email the local office, but wrongly advised her that bail conditions could not be granted as the children were not witnesses. The victim also noted she had an operation scheduled before the trial and may be unfit to attend. This information was not imported to the case file and prosecutors and VIA appeared to be unaware of it
• a victim requesting updates from Enquiry Point on six occasions. Because the information was recorded on the witness contact screen but not included in the VIA minute sheet or elsewhere in the case file, it would appear to the prosecutor that there was little engagement from the victim
• a victim wishing to discuss special measures. Enquiry Point sent an email to VIA but this was not imported to the case and there was no evidence VIA returned the victim’s call.

448. There were also a few positive examples of information supplied by Enquiry Point being acted upon by VIA. In one case, Enquiry Point was not able to answer a victim’s query about bail. The operator emailed VIA. The email was imported to the case file and VIA responded to the victim’s query.

449. One prosecutor we interviewed had not previously been aware of information recorded on the witness contact screen until he was interviewed by inspectors. He subsequently contacted us, saying he had since been using the information when preparing cases and found it useful.

450. Important information about contact with victims (and witnesses) is currently being recorded in different places. This can lead to a poor victim experience and negatively impact case preparation. This issue affects not just summary domestic abuse cases, but all cases. We raised this issue with COPFS prior to publication of this report so that immediate remedial action could be taken.

451. COPFS requires to update its systems so that all contact with victims is recorded in one place, accessible to all staff. This will minimise the risk of enquiries going unnoticed or unactioned. We appreciate that this may take some time to deliver, although work towards delivery should be expedited. In the meantime, action should be taken to address the issues we have raised here. This could mean the VIA minute sheet being updated with all victim contact. While this would be helpful in domestic abuse cases, it is not a solution for other cases where there may be no VIA involvement and hence no VIA minute sheet. Moreover, while the VIA minute sheet is often the source of much information about victim contact, it cannot be the long term solution in its current form. Too often, we heard from staff about the document becoming corrupted and inaccessible. COPFS requires to identify a more appropriate solution to recording victim and witness contact.

Recommendation 22

COPFS should ensure that all victim and witness contact is recorded in one centralised place accessible to all staff. In the short term, COPFS should take immediate action to ensure that all staff are aware where victim and witness contact with Enquiry Point is recorded, and that staff use this information when preparing and managing cases.

Administrative backlogs

452. Administrators in summary teams play an important role in processing domestic abuse cases at various stages. This will include tasks such as updating the case management system following court dates or actioning a prosecutor’s instruction. It also includes monitoring electronic mailboxes, importing emails into case files and ensuring these are drawn to the attention of the appropriate team or person when needed. We heard that there were backlogs in processing emails in many offices. Administrative staff felt they had insufficient resources to cope with demand.

453. We heard of backlogs in processing summary court outcomes resulting in delays in countermands being sent to cited witnesses. This can result in victims and other witnesses attending court to give evidence when the trial diet has been adjourned or the accused has already pled guilty at an intermediate diet.

454. Emails processed by administrative staff include those from victims, witnesses, advocacy workers, justice partners and Enquiry Point. Backlogs of emails contribute to the delayed responses we heard about from victims and advocacy workers,^[89] and issues only being dealt with immediately before the next calling of the case or even after the need for a response has passed. When a response is not received, another email may be sent or a follow-up call made. This further increases the volume of emails that need to be processed. This is known as ‘failure demand’ – when a service’s failure to deal with an issue the first time prompts further demand. The need for victims to call Enquiry Point to clarify the contents of poor quality letters from VIA, or to request an update in a case when VIA has failed to send information timeously, are further examples of failure demand. We consider that if COPFS were to focus on a ‘right first time’ approach, demand across various channels of its service would reduce and efficiencies could be achieved.

Recommendation 23

To improve the efficiency of its service, COPFS should identify and reduce failure demand.

Overlapping services

455. During our inspection, we heard that some victims can get calls from more than one agency about the same thing. For example, we heard that some receive calls from both VIA and the police about the outcome of the case’s first calling. If they are engaged with a support organisation, they may receive a third call. Victims can find this frustrating. There is a need to ensure that all victims are notified of key information, but that this is done efficiently, particularly given that so many services are publicly funded.

456. Addressing this issue is not without difficulty however. COPFS has a statutory duty to provide information to victims, while a support organisation may be updating a victim about a court outcome but also providing other forms of support at the same time.

457. A review of victim care in the justice sector published in 2017 outlined how victims require to engage with multiple organisations throughout their justice journey. It noted that victims wanted, ‘one point of contact – a single source which could co-ordinate a response to all of their individual needs for practical assistance, support, information and explanation’.^[90] This was echoed in our own interviews with victims. The Victims Taskforce currently has a ‘victim-centred approach’ workstream which is considering the development of a single point of contact model for victims.^[91] We look forward to seeing the outcome of that work.