Thematic review of the investigation and prosecution of sexual crimes

181. The nature of sexual crimes, usually committed in the absence of any independent eye witnesses, presents particular evidential challenges. Critical to the prosecution, in almost all sexual crimes, is the evidence of the victim(s).

182. Recognition of the need to improve the experience of victims and witnesses in the criminal justice system has brought a succession of reforms and legislative provisions creating new rights for victims and witnesses. ^[59]

Experience of Victims

183. Notwithstanding the plethora of legislative obligations, codes and standards, designed to support victims and witnesses through the criminal justice process, there is a body of evidence that many victims of sexual crimes feel marginalised and ignored rather than being placed “at the heart of the criminal justice system”. ^[60]

184. Recent reports, informed by feedback from support organisations and first-hand accounts of victims, conclude that the system is not meeting victim’s expectations and needs.

185. The Justice Committee’s report stated:

“Evidence received over the course of this inquiry shows a divergence between the intentions of the COPFS and the experience of many victims. Victims can be re-traumatised by what can come across as a mechanistic process that does not always appear to have their interests at heart. Victims and witnesses are sometimes made to feel like an afterthought. This is a system-wide problem but the COPFS, as the key organisation within the prosecution process, bears its share of responsibility.” ^[61]

The report, ‘Review of Victim Care in the Justice Sector in Scotland’, ^[62] published by Dr Lesley Thomson, QC, (Thomson report) was commissioned to explore what COPFS could aspire to deliver in the support and care of victims in Scotland. Its aim was to:

“Set a vision, for the 21st century, of how Scotland’s justice sector should respond to victims, witnesses and vulnerable accused.” ^[63]

It found:

“We should be in no doubt that the experience for many victims can be of a system which does not recognise or accommodate their needs.” ^[64]

Our findings lend weight to the views expressed in these reports.

Justice in Scotland: Vision and Priorities

186. The remit of the Justice Board, ^[65] of which COPFS is a key participant, is to lead the justice system organisations to deliver person-centred, modern and affordable public services. Justice in Scotland: Vision and Priorities ^[66] sets out seven priorities including:

• Modernising civil and criminal law and the justice system to meet the needs of people in Scotland in the 21st Century; and
• Improving the experience of victims and witnesses, minimising court attendance and supporting them to give best evidence.

Victim’s Code

• COPFS is a signatory to the Victim’s Code. ^[67] The Code, having regard to a set of principles, sets out minimum standards of service that victims and witnesses should expect from the core criminal justice agencies. ^[68]

COPFS Commitments to Victims

COPFS published commitments to victims and prosecution witnesses are to: ^[69]

• Contact victims timeously and provide information when needed;
• Update victims on the progress of their case;
• Communicate clearly and effectively
• Identify vulnerabilities and obtain appropriate special measures; and
• Provide information on support agencies;

Victim Information and Advice

187. The Victim Information and Advice (VIA) Service is the dedicated service offered by COPFS to victims, witnesses of certain crimes and bereaved relatives affected by certain types of deaths.

188. The ethos of VIA is to increase victims, witnesses and bereaved relatives understanding of, and satisfaction with their experience of the criminal justice process.

VIA’s Remit

189. When introduced in 2004, VIA’s main function, for any case referred to it, was to pro-actively provide victims and witnesses with information on:

• Key aspects of the criminal justice system;
• The progress of the case with which they are involved; and
• Agencies that can provide practical and emotional support.

190. Over time VIA’s role has expanded. The current categories of cases that are referred to VIA are set out at Annex B. It includes all victims of sexual crimes.

191. As a result VIA’s caseload has grown considerably. In 2014-15 approximately 40,000 victims were referred to VIA compared to 27,559 in 2006-07, representing a 45% increase in referrals over the last seven years. ^[70]

Prosecutorial Independence

192. The independence of COPFS and their obligation to prosecute in the public interest is not always understood by victims and witness.

193. In his evidence to the Justice Committee, the Crown Agent stated:

“It is essential that COPFS do not claim to be able to do more for victims than we can. Our job, after all, is to prosecute crime.”

194. Many victims erroneously assume that their relationship with the prosecutor is comparable to that between the accused and his/her lawyer. This is not the case. The public prosecutor acts independently in the public interest. Assessment of the public interest involves consideration of competing interests, including the interests of the victim, the accused and the wider community. Prosecuting in the public interest prevents the prosecutor from discussing certain aspects of the evidence with the victim during the investigation or at any court proceedings.

195. VIA is part of the prosecution service. As such, it does not provide a victim support or counselling service. Its responsibility is to provide information on the availability of such services.

COPFS Victim Strategy

196. COPFS has implemented a Victim Strategy for all victims of High Court sexual crimes. An individual Strategy for each victim in each case should be completed. The Strategy is dependent on receiving vulnerability reports ^[71] from the police.

197. The Strategy was revised in January 2017. It commits VIA to:

• Contact all victims, referred to them, within 24 hours of the accused appearing in court to advise them of the outcome and whether there are any bail conditions. If, for any reason, VIA is unable to contact the victim they should ask the police to make personal contact. ^[72]

• Make contact by telephone within 7/21 days for custody/bail cases where the accused has appeared in court.

198. The telephone call should include:

• introducing VIA and the case preparer to the victim;
• the process and likely timescales;
• the victims’ preferred method of communication and whether they would wish an early face to face meeting with the case preparer;
• an assessment of vulnerabilities and special measures;
• the victim’s attitude to proceedings and to obtaining sensitive, personal records;
• managing their expectations;
• signposting the victim to support organisations, if appropriate;
• updating the victim following any ‘significant event’, such as when an indictment has been served on the accused; and
• contacting the victim in accordance with the level and type of communication that has been agreed.

199. Victims should also be given the opportunity to see their police statement(s) and attend a meeting with the case preparer.

COPFS Commitments to Victims

200. We examined data from our 50 indicted cases review and sought feedback from the focus groups on each of the COPFS commitments.

Contact and Updating Victims

Case Review

201. We assessed the quality and timeliness of COPFS communication with victims. One case was excluded as there was no identifiable victim.

N/K = Not Known
N/A = Not Applicable

Communication of Outcome at Court

202. As discussed being advised of what happens in court following the arrest of an accused person is of paramount importance to the victim. If granted bail, receiving immediate notice of any conditions attached to the bail order designed to provide protection for the victim is critical.

203. We found that VIA made contact with the victim within 24 hours of the accused appearing in court, and sent a letter advising what happened, including notification of any bail conditions, in 40 (82%) of the cases examined.

204. There were, however, 9 cases (18%) where VIA failed to notify the victim of the outcome of the court appearance within the 24 hour period or asked the police to contact them. For many victims, who have taken the decision to report a person to the police, this is a time of extreme anxiety and only 100% compliance is acceptable.

Providing Updates

205. VIA contacted victims to provide an update following the:

• Service of indictment in 94% of cases;

• Preliminary Hearing in 98% of cases; and

• 7 days before the trial in 87% of cases.

206. VIA provided updates following the above significant events in 93% of cases.

Provision of Statements

207. The prosecution is entitled to provide witnesses with a copy of their statement(s) prior to giving evidence at trial. ^[81] Having sight of their statement enables witnesses to address any inaccuracies or misunderstandings and mitigates any delay between giving a statement and attending court, which in some cases, can be years after the initial statement.

We found:

• 34 victims were provided with a copy of their statement. It was not appropriate to provide statements directly to six victims who had learning difficulties or were children. There was no record of nine victims being offered a copy of their statement.

Meeting with Victims

• There was only one case where the victim was not offered a meeting in accordance with COPFS policy.

Frequency of Contact

• After sending out an introductory letter advising what happened at court, there was, on average, four months between the accused’s first appeared at court and any subsequent contact from VIA. In 15 cases, six months or more elapsed.

Key Finding

VIA updated victims of any significant developments in 93% of cases. There were, however, significant gaps between contacts from VIA.

Victim Strategy

208. The revised Victim Strategy aimed to improve the content and timeliness of the initial contact with the victim. To assess whether it has achieved this outcome, we reviewed 30 case files, involving 61 victims, where the accused had appeared in court in May 2017 on sexual crime charge(s). This gives a snapshot of current performance ^[82] .

• We found that VIA contacted 48 victims (79%) to advise that the accused had appeared in court and of the outcome or contacted the police to convey this information within target timescales. There were, however, 13 cases (21%) where VIA did not contact the victim within target timescales.

• We found that the essential aspects of the strategy were covered with 41 victims. There were nine victims who refused to engage with VIA, one for whom VIA was awaiting contact details from the police and two where the circumstances made it inappropriate for VIA to make contact. There were, however, eight victims with whom VIA failed to make any contact.

• Only 20 victims were contacted within the 7/21 days target for custody/bail cases.

209. We found several examples of exemplary communication where the VIA Officer covered all aspects of the strategy comprehensively including, giving information on the likely timescale for the investigation, seeking to ascertain whether the victim had any particular concerns and inquiring whether they required more regular contact.

210. The failure, however, to make contact with eight victims, approximately five months after the accused has appeared in court, is concerning.

Victim’s Voice

211. The lack of communication from COPFS was the main source of complaint from those who attended the focus groups. Feedback from victims and support agencies describe VIA as re-active rather than pro-active.

What we were told

212. Following the initial contact from VIA, it was not understood that there may be a lengthy period, often more than six or seven months, where there are no significant developments and thus no contact.

213. Victims were too intimidated or lacked confidence to contact VIA to ask for more regular communication.

We heard often:

“Your life is on hold, simply waiting for a phone call.”

214. In the case study below, a period of 10 months without any contact from COPFS, led the mother of the victim to believe that the case had been “dropped”.

A police report was sent to the prosecution service in March 2016 containing an allegation of rape of an 11 year old child. It was decided that the case would benefit from pre-petition investigation.

The day after the police report was received VIA sent an introductory letter to the parents of the child. The letter advised that a report had been submitted by the police and explained that VIA would provide regular updates on the progress of the case. Following this initial contact, the mother contacted the Procurator Fiscal’s Office twice to seek an update.

Following a 10 month gap, with no contact from the prosecution service, a Rape Advocacy worker, supporting the family, contacted the Procurator Fiscal’s Office to seek an update. She was advised that the case was still being investigated.

Two months later, the investigator, dealing with the case, contacted the family to advise that a decision had been made to prosecute and a warrant to arrest the accused had been issued.

The accused appeared at court the following month. The provisional date for the Preliminary Hearing is January 2018 – almost three years after the alleged crime took place – and almost a quarter of the life of the child.

What would make a difference?

“I generally heard nothing from month to month……it would be helpful to have had a phone call every few weeks, even if nothing much had happened, just to let me know it was still being dealt with.”

215. Every victim agreed with this sentiment. We were told that a phone call every six to eight weeks, regardless of whether there were any developments, would provide re-assurance that the case was still on someone’s radar.

Key Finding

The frequency of contact provided by the COPFS Victim Strategy is not meeting the needs of victims.

Recommendation 7

COPFS should ensure that VIA pro-actively offer to contact the victim every eight weeks, as a minimum, unless more frequent contact is required or requested or a victim expressly opts out.

Dedicated VIA Officers

What we were told

216. Having a dedicated VIA Officer, providing continuity of support, was highly valued.

217. The lack of a dedicated VIA Officer or point of contact made victims feel that they were being “passed from pillar to post”.

“A dedicated contact point saves you having to re-tell your story over and over and makes you feel as though someone is invested in your case.”

218. VIA Officers are allocated to individual cases in the North and East. In the West, however, cases are more usually allocated on a team basis.

Recommendation 8

COPFS should ensure that there is a dedicated VIA Officer allocated to each case and provide victims with information on who to contact in their absence.

What we were told

219. Being informed by a VIA Officer that they had to consult the Procurator Fiscal before they could update the victim or provide certain information left some victims with the impression that VIA was not part of the prosecution service. The perception of VIA as a separate entity from COPFS may explain why some victims maintained that they had no communication with the prosecution service, yet their case file showed that they had been contacted by VIA.

Key Finding

Victims commonly do not understand that VIA is part of COPFS.

Recommendation 9

COPFS should consider re-branding VIA to include a reference to “prosecution” in their title.

Communicate Clearly and Effectively

220. The Justice Committee report referring to evidence it heard states that, “there was a tendency within the COPFS to over-estimate how much victims and witnesses understood the criminal justice system and the prosecution process”. ^[83]

221. Feedback from support organisations and victims supports this assertion.

Victim’s Voice

What we were told

222. The language used in letters sent out by VIA is overly complicated and full of legal jargon. The use of terms such as “petition”, “preliminary hearing” and “cited to court” are unhelpful and confusing. The introductory letters contain too much information, at a time when you are struggling to deal with what has happened.

“The language is not understandable. I had to educate myself using Google.”

“You need a law degree to understand what was going on.”

223. Advocacy Workers at Rape Crisis Scotland and Archway advised that they are regularly asked to explain the content of letters from COPFS.

224. The name of the accused highlighted at the top of correspondence in bold letters was distressing and unnecessary.

“On opening the letter the first thing I saw was the name of the person who attacked me in in black bold letters, it was very distressing.”

225. Getting communication right at the start is essential to building the confidence and trust of victims and to securing their engagement in the process. Standard letters can be helpful but communication needs to be tailored to the individual as demonstrated by the case study and correspondence below:

VIA sent out the standard pre-petition introductory letter to an adult victim with a learning disability, living in supported accommodation and receiving care on a daily basis. The letter discussed: interview by a “precognition officer”, obtaining “personal records” and explained that a “definitive timescale” could not be provided for a decision to be reached.

226. The following is an extract of letter sent to a 15 year old with mild learning disabilities:

“The accused was granted bail with special conditions. Please see the information at the end of this letter on standard bail conditions. In addition to standard bail the Sheriff told the accused that he does not enter nor seek to enter xxx or contact victim’s name. If you believe any of these conditions of bail are breached, you should contact the police immediately, and let us know too”.

“If you have to come to court, there are ways we can make it easier for you to give evidence. This is known as using “special measures”.

You are entitled to special measures to help you give your evidence in court. I would like to discuss special measures with you so that I can let the Sheriff know your preference. You may wish to look at the booklet “Being a Witness, The Use of Special Measures” on the COPFS website at the address given in the additional information paragraph of this letter. This booklet will tell you about the different types of special measures.

Please contact me on the number at the bottom of this letter to discuss the options for special measures. If I don’t hear from you I will apply for the use of:

Screens and Witness Service supporter.

If you are cited to give evidence in court I will pass your details to the Witness Service to contact you. If you wish to contact them sooner, you can find their contact details on their website at www.victimsupportsco.org.uk”

227. Letters in similar terms were sent to the parents of the child and the victim with a learning disability. However, the use of terms such as “interview by a “precognition officer”, obtaining “personal records”, “bail with special conditions,” “cited to court” and “use of special measures” are not accessible terms for anyone unfamiliar with the criminal justice system may have caused confusion or even distress.

228. There were examples in our case review where the support from VIA made an enormous difference. In two cases with very vulnerable victims, VIA made numerous inquiries and calls to enable them to give evidence from courts in England rather than travel to Scotland. In several other cases, VIA went the extra mile to co-ordinate the travel and accommodation needs of victims.

Case Review

Right to be Understood

229. We identified equalities issues in 15 out of the 50 cases. In 13, VIA made arrangements to accommodate the individual needs of the victims and witnesses, including translating documents and proactively seeking out the best way to communicate with victims whose first language was not English.

A case of rape and physical abuse, involved sensitive religious and cultural issues. Many essential witnesses, including the victim, did not speak English. VIA arranged for the victim, who resided in England, to fly accompanied by a family member, to Scotland for interview. All interviews took place with the assistance of an interpreter and VIA translated all correspondence into the victim’s first language, Urdu.

230. The other two cases involved victims with severe learning difficulties. VIA sent out standard letters to both victims, despite the difficulties being flagged up in the police report. Both victims required a tailored approach with consideration being given to identifying an appropriate intermediary who could assist them in a meaningful manner.

Key Findings

The use of legal terms when dealing with victims and witnesses creates barriers and enhances a sense of separation and detachment from the process.

The COPFS Victim Strategy requires a more nuanced approach, tailored to victims’ needs. For victims with identified vulnerabilities, such as mental health problems or learning difficulties, a bespoke strategy taking account of their particular needs, including whether more regular contact would assist, should be discussed and agreed at the outset.

231. Assumptions are made that victims and witnesses have some understanding of the criminal justice system resulting in procedures and outcomes not being fully explained, leaving the victim unclear or confused as to what has happened.

232. In a case where the accused pled guilty, we were told that the victim was disappointed that the judge would not have heard about the circumstances of the crime. No-one had explained that the prosecutor would have narrated the circumstances to the judge prior to sentencing.

233. We saw examples where the consequences of a Not Proven verdict were not understood.

234. Concerns were expressed about the empathy of some communications.

“On asking why the trial was being put off for a third time, I was told there were other cases that had higher priority. This makes you feel that you do not matter.”

235. Cases may have to be given priority for several reasons, such as meeting strict time limits or because they involve child witnesses or a child accused, but without such context, the comment appears insensitive.

“I was phoned and told that it was a Not Proven verdict. I was on my own. I Iost it.”

236. There are many aspects of the system over which COPFS has no control such as scheduling of courts or when a verdict is returned. It should not be assumed that victims are aware of why things occur or who is responsible.

Key Finding

There is an unrealistic expectation by COPFS of victim and witnesses’ understanding of the prosecution process and how the criminal justice system operates.

What would make a difference?

237. An initial phone call, followed up with a letter, using easy to understand language, to confirm what was discussed was the preferred option of the victims and support agencies.

238. We understand that all VIA letters are currently being reviewed to make them more user-friendly. We support the review and recommend that COPFS takes account of feedback from support organisations.

239. We welcome the commitment of COPFS to deliver an updated programme of mandatory training for all staff on the impact of crime on victims as recommended by the Thomson report.

Recommendation 10

COPFS should review all correspondence sent out by VIA.

Identify Vulnerabilities and Obtain Appropriate Special Measures

240. Empowering victims to give their best evidence undoubtedly impacts on the overall quality of the case presented by the prosecution.

241. In almost all sexual crimes, the evidence of the victim is essential to the prosecution. If the victim is unable to give evidence or their ability is impaired by anxiety, fear, intimidation or a sense of isolation, it is likely to have a significant impact on the outcome of the trial. For that reason, the assessment of a victim’s vulnerabilities and identifying the most suitable method for them to give evidence is essential.

242. Recognition of the need to provide an environment conducive to victims giving their best evidence led to a suite of special measures being introduced in the Victims and Witnesses (Scotland) Act 2014 ^[84] (the 2014 Act).

Victims and Witnesses (Scotland) Act 2014

243. The 2014 Act represents a major landmark for victims and witnesses’ rights. It provides a framework for support of victims and witnesses throughout the justice system and, creates new rights aimed at ensuring that witnesses are able to fulfil their public duty effectively. ^[85]

244. The Act re-defines the categories of person that are to be regarded as vulnerable witnesses – referred to as “deemed vulnerable” – to include:

• Children under the age of 18 at the date of the commencement of the proceedings (previously 16);
• Adult witnesses whose quality of evidence is at significant risk of being diminished either as a result of a mental disorder, or due to fear or distress in connection with giving evidence;
• Victims of alleged sexual offences, human trafficking, an offence the commission of which involves domestic abuse or stalking who are giving evidence in proceedings which relate to that particular offence; and
• Witnesses who are considered by the court to be at significant risk of harm by reason of them giving evidence.

Special Measures

245. Being deemed a vulnerable witness automatically entitles the witness to the use of standard special measures when giving evidence. These are:

• use of a live television link;
• a screen to avoid seeing the accused; and
• a supporter.

246. Other special measures may be allowed if the court is satisfied that they are justified. These are:

• giving evidence via a commissioner; ^[86] and
• giving evidence by means of a prior statement.

247. The Act also creates new rights for victims and witnesses including:

• Right to a closed court; ^[87]
• Right to ask for a decision not to prosecute or to bring proceedings to an end to be reviewed; ^[88]
• Right to request and be given information about their case; ^[89]
• Right to understand and be understood – this means that all communications are as clear and easy to understand as possible, taking into account of the individual needs of the person; ^[90]
• Access to victim support services; ^[91] and
• For criminal justice organisations to take reasonable steps to enable victims and their family to avoid contact with an accused in the course of criminal proceedings. ^[92]

Special Measures Regime

248. The 2014 Act significantly increased the number of witnesses who are automatically entitled to special measures.

249. Written applications and notices for special measures are required regardless of whether a victim has an automatic right.

250. VIA prepared 2,110 ^[93] notices or applications for special measures in 2014-15. ^[94] COPFS has estimated an increase of 20,000 applications as a result of the 2014 Act: 4,000 from the widened definition of a child witness and 16,000 from the new “deemed vulnerable” category.

251. VIA spends a significant amount of time drafting notices and applications for special measures; time which VIA Officers told us they would much prefer to spend communicating with and updating victims.

252. Feedback from organisations that support victims report that the increase in vulnerable witness notices has impacted negatively on VIA’s ability to provide victims with information timeously and assess victim’s needs to ensure that the appropriate special measures are sought.

253. If it is assessed that a witness or victim would benefit from special measures, the prosecutor is unable to advise whether they will be able to give evidence in the manner of their choosing until it has been granted by a judge.

What we were told

254. Victims want certainty that the special measures requested will be available, including a supporter of their choice.

255. Given that the intention of the 2014 Act is to provide automatic entitlement for standard measures for deemed vulnerable witnesses, including all victims of sexual crimes, it begs the question why notices and applications are necessary.

256. To give meaning to “putting the victim at the heart of the system” and to support victims and witnesses to give their best evidence, other than for taking evidence by a commissioner and giving evidence in the form of prior statement, ^[95] we advocate the removal of the requirement to lodge notices. This would empower victims “deemed vulnerable” to choose how they wish to give evidence. Confirmation that the special measures of their choice were guaranteed would provide victims with certainty and an area over which they had some control.

257. The abolition of the industry of drafting notices would also free up valuable VIA time that could be devoted to their core functions.

258. For practical reasons, the court would require notification of the measures in sufficient time to facilitate arrangements. Notices currently require to be lodged 14 days prior to the Preliminary Hearing. Given that the average period between the Preliminary Hearing and the trial is at least 3 months, there would be more than sufficient time to make the appropriate arrangements, if notification was given at the Preliminary Hearing.

Key Finding

The abolition of notices and applications for special measures would provide certainty for victims that they could give evidence in accordance with the standard measure of their choice.

Identification of Special Measures

259. Identifying appropriate measures for victims of sexual crimes is a key VIA responsibility.

260. The use of special measures is discussed by VIA as part of the initial call to victims and followed up in their introductory letter. The letter includes a link to a booklet “on the use of Special Measures” on the COPFS website, and advises that VIA will apply for the use of screens and a supporter from the Witness Service, if they do not hear from the victim.

261. Special measures are also discussed during the interview with the case preparer.

Victim’s Voice

What we were told

262. We heard that there is an issue around the timing of discussing special measures.

263. At the time of the initial phone call by VIA, a final decision on whether there is to be a prosecution has still to be taken, and the focus of victims is on the investigation and its outcome. For many, the information provided during the initial discussion with VIA is overwhelming. This may lead many victims to accept the default position of a screen and witness service supporter.

264. A number of victims said that they did not understand what was meant by “special measures” until it was explained at a meeting with VIA or case preparer.

“It is hard to think of what special measures you want in the abstract.”

265. One victim explained that she had difficulties with reading and only understood what was meant by the term “special measures” when it was explained by an advocacy worker.

266. Advocacy workers told us it was not uncommon for victims to later change their mind as the trial approaches, resulting in late applications for different special measures.

“Initially I thought I could cope with screens but the closer I got to the trial, I could not face being in the same place as the accused. I became physically ill at the thought.”

What would make a difference?

267. Most victims said that the discussion on measures is more meaningful face to face. It provides a better understanding of what they are being asked and the various options.

“I was pro-actively contacted by the case preparer requesting I attend the precognition with the victim. The case preparer explained very skilfully the evidential complications of a Moorov case and brilliantly explained the special measures available. This made the victim feel like they had a real choice in the process.” [Advocacy worker from Rape Crisis]

Case Review

268. In our 50 case review, 100 of the 118 victims requested some form of special measures. 61 requested a screen and supporter. Of the 100 victims, 17 later sought to change the special measures that had been granted by the court. Three requested evidence on commission; five requested the use of a TV link; six requested additional measures of screens, supporters or a closed court. One decided they no longer required a screen and the remaining two victims decided that they no longer required any special measures.

269. It was evident from the records updated by VIA that the victims’ focus on court and special measures crystallises after the indictment is served.

270. To meet the individual needs of each victim, the optimum time to discuss and assess special measures is at the face to face meeting. It, therefore, makes sense to draft any notices following that meeting rather than at an earlier stage. This should hopefully reduce any last minute requests for different special measures, avoiding the need for VIA to draft more than one application.

Key Finding

Asking the victim to engage pro-actively on special measures at the beginning of the investigation is premature. Many victims and witnesses do not have sufficient knowledge of court procedures and concepts such as TV link to make informed decisions. Decisions on special measures should be tailored to the individual needs of the victim following a face to face meeting.

Recommendation 11

COPFS should discuss and agree special measures at the interview with the case preparer in the context of preparing the victim or witness for court.

Provide Information on Support Agencies

271. The 2014 Act entitles victims to seek referral to providers of victim support services. ^[96]

272. A wide range of voluntary and charitable organisations and principal victim support agencies provide a variety of services, including advice, counselling and advocacy. Some are tailored to particular demographic groups, such as children or victims of domestic abuse.

273. Police Scotland has a Scotland wide agreement with RCS, to offer to provide, at their request, details of any victim of rape or sexual assault, aged over 13, to RCS to facilitate a counsellor contacting them to offer support. As part of the referral arrangement, RCS provides feedback on the victim’s experience of their interaction with the police. This provides a valuable source of learning for the police.

274. We understand that COPFS and RCS have agreed to introduce a similar feedback arrangement whereby Rape Crisis will provide anonymised and confidential feedback from any victim who has come into contact with COPFS. This is a positive development, demonstrating COPFS’ desire to listen to victims and learn from their experiences.

275. One of VIA’s functions is to signpost victims to an appropriate support group.

276. There is, however, no single support agency or single gateway to accessing such services. Rather there are numerous organisations and agencies, each with their own individual obligations and responsibilities, some of which overlap with each other.

277. As acknowledged in the Thomson report, the current system does not lend itself to the seamless provision of all victims’ needs.

278. COPFS acknowledges that there is a gap between the service which it can provide and the service which it would like to see victims receive from the system, as a whole, but stresses that their effectiveness is intimately bound up with that of the police, the courts, and the wider legal profession. ^[97]

279. COPFS supports a system of victim care in the form of a co-ordinated service with all criminal justice and third sector organisations working together, within a model that provides a single point of entry, as advocated by the Thomson report.

280. The Scottish Government has agreed to facilitate discussion with justice agencies and representatives from victim support organisations, including RCS, Scottish Women’s Aid and Victim Support Scotland, to consider the recommendations of the Thomson report and develop proposals to improve the support provided to victims, including consideration of a single point of contact.

281. A system where services are co-ordinated and, ideally, co-located would address many of the concerns of victims.

Victim’s Voice

What we were told

282. Most victims want the equivalent of the accused’s lawyer to act as a single point of contact.

“The system is loaded in favour of the accused. The victim does not have a lawyer like the accused.”

283. Contact with different organisations causes confusion for victims and repeatedly having to re-tell their account is distressing and demoralising.

“You need someone to guide you through this alien system from end to end. There is an expectation that you have a greater knowledge of how the system works than you do.

What would make a difference?

284. From an equality point of view many victims express the desire to have their “representative” guide them through the process – a victim’s advocate.

285. In absence of a cohesive single service, an independent “advocate or supporter” can act as a point of contact for the victim and provide support that is tailored to their needs, rather than those of the system.

286. An “advocate or supporter” can assist victims navigate the criminal justice system, keeping them central to the process and provide a 'one stop shop' for information and updates. The service provided by the advocate or supporter should complement that provided by VIA.

287. The recently published National Scoping Exercise of Advocacy Services commissioned by the Scottish Government observed that victims consistently report that advocacy services have improved their safety, wellbeing and quality of life. ^[98]

288. For sexual crimes, the Scoping Exercise identified two existing models of advocacy:

• Rape Crisis Scotland National Advocacy Project – a relatively new resource with 15 advocacy workers based within a rape crisis centre, taking self-referrals and police referrals, supporting women to report to police, and through the pre- and post-court process.

• Archway – support or advocacy workers taking some self-referrals and police referrals; conducts forensic examination; and supports victims all through the process. ^[99]

It does acknowledge, however, that the availability of advocates or supporters is limited.

What we were told

289. We met with a number of victims, who had received some form of advocacy and/or emotional and practical support. All said that the support made a substantial difference to their willingness to engage with the criminal process and, for those who gave evidence, to their knowledge of what to expect, which made them less anxious.

Key Finding

The criminal justice system places an onus on victims to seek updates, decide about special measures, find appropriate support, deal with the shifts and uncertainties in scheduling of trials and narrate what happened in an environment over which they have no control. For many dealing with the trauma of the offence, the process is too much and it explains why many simply disengage.

290. Victims want someone who understands the system to guide them through it step by step. This is not a role for VIA but there is scope for VIA be more pro-active in referring victims to agencies who can provide advocacy, and/or emotional and practical support. For example, VIA should routinely offer, with their consent, to make direct contact with the agency, negating the need for the victim to make the call.

291. For those who decline such support or where such support is not available, for whatever reason, having a dedicated VIA Officer becomes more critical.

292. Volunteers from the Witness Service, or VSS, have traditionally been designated as a supporter. For many, they provide excellent support and their assistance and experience is invaluable.

293. However, for some victims who have received support from agencies such as RCS or Scottish Women’s Aid, early consideration requires to be given to identifying the person that is best placed to provide support in court.

“It is illogical to get support from someone you have never met – it is counter‑intuitive.”

294. With the expansion of the Rape Crisis advocacy service, victims who have received such support often request the advocacy worker as their supporter. Taking a victim-centred approach requires their wishes to be accommodated, where possible. The victim should, however, be made aware of the well-defined role of the supporter which can limit discussion and contact during the proceedings. For that reason, it may be preferable for the supporter to be someone other than the advocacy worker.

Court Proceedings

Victim’s Voice

What we were told

295. The lack of information regarding the nature of the investigation and on decisions taken was a source of frustration for many victims, compounded by awareness that the accused is privy to all information about the case, including the victim’s account, and has a legal representative acting on their behalf.

296. We found nervousness and uncertainty on the part of some VIA staff on what information can and should be shared.

A victim, who reported allegations of sexual and physical abuse was advised that there was only sufficient evidence to prosecute the accused on two charges of historical physical abuse.

She was told that she could not mention anything concerning the sexual abuse when she gave her evidence as it may prejudice the trial. With assistance from her advocacy worker, she sought information on which incidents/charges were being prosecuted but was advised that she could not be told – resulting in her having no idea what aspect of the accused’s offending she was going to be asked about in the witness box leaving her, in her words “to be ambushed in court.”

297. This inaccurate assessment of what the victim could be told contributed to her anxiety about giving evidence.

298. Of those who had given evidence, it was a common assertion that while the court process was explained by VIA or the case preparer, it did not fully prepare them for the hostile and intrusive nature of the questioning.

“I was not prepared ………., it was the most degrading and terrifying thing.”

299. Giving evidence for most people is a terrifying prospect. Being as fully prepared as possible can mitigate that fear and assist the witness to give their best evidence.

300. COPFS policy is to discuss possible lines of questioning that may be asked when interviewing witnesses. This includes exploring any inconsistencies in their account and potential questions about sexual history or character evidence where it is likely to be raised. In doing so, however, it is important that case preparer explain the context of such questions to victims. We heard from a support worker that case preparers do not always explain that they are asking questions that the defence may raise, leading to victims shutting down and disengaging with the process as they are left with the impression they are not believed.

301. Where for legal reasons, information cannot be provided, rather than a bald statement that it could prejudice the trial, victims/witnesses require to be given some information to explain why it may be considered prejudicial.

302. We found a lack of awareness on the part of many victims on the role of the prosecutor and defence counsel, suggesting that there is a need for more detailed discussion with victims at any interview on what will happen at the trial.

Giving Evidence

303. Many victims expressed anger at the manner and content of questions asked during the trial. Giving evidence at the trial was described as brutal, uncompassionate, and cruel.

“In our court system, you are totally humiliated. It was the most degrading experience I have been through.”

“Court was absolutely horrendous, it was worse than being raped.”

304. The regulation of conduct, including cross-examination, during a trial is a matter for the judiciary. The Lord President, during a case in 2015, emphasised the duty of the judge in this regard:

‘The right to cross-examination of an alleged sexual assault victim “does not extend to insulting or intimidating a witness” and trial judges should intervene where questioning ‘strays beyond proper bounds’

305. The prosecutor also has a role in objecting to questions that have no direct bearing on the charge(s).

Meeting the Trial Prosecutor

Case Review

306. It is COPFS policy for the trial prosecutor to meet the victim prior to the trial. If possible, it is preferable for such meetings to take place before the date of the trial but often, for practical reasons, the meeting takes place on the day of the trial.

307. Of the 50 cases reviewed the victim met the trial prosecutor in 25 cases. In the remaining 25 cases, five had been resolved by a plea, four were discontinued and in one there was no identifiable victim. Four cases have yet to conclude, the victim gave evidence by a remote TV link in one case and in two cases evidence was given on commission. In eight cases there was no record of whether the trial prosecutor met the victim.

308. In many cases following the trial, the trial prosecutor offered to meet the victims to explain the outcome, including cases where there was a not proven or not guilty verdict.

309. The feedback from those who met with the prosecutor was positive. For those who were not given the opportunity, it reinforced their perception that they were not valued, other than as a source of evidence. Meeting witnesses beforehand is often advantageous to the prosecutor as it provides an opportunity to establish a rapport with the victim and assess any particular communication needs.

“I met the prosecutor before the trial… meeting him made it more human and made me more relaxed.”

Safety at Court

310. The prospect of seeing the accused at court is a fear that looms large for many victims. It is appreciated that the antiquity of some of the courts estate causes difficulty in providing separate accommodation for victims and the accused and his/her entourage but the logistics of attending at court is an important consideration for providing re-assurance to victims.

“In two cases recently the victim walked in and saw the accused and left without giving evidence”. [Rape Crisis Advocacy Worker]

311. A protocol ^[100] between COPFS and the Scottish Courts and Tribunals Service has recently been amended to include in the Vulnerable Witness Notice any requirements for the witnesses’ attendance at court, including addressing the anxiety of seeing an accused at court. In such circumstances, discussion of entrances and safe waiting areas should be routinely considered and discussed by VIA and court officials.

Effect of Delays and Adjournments

312. A common complaint was the time taken for cases to get to trial or trials being repeatedly adjourned.

313. Victims were also adversely affected by their cases being transferred from one court to another, usually at short notice. The prosecutor is not responsible for scheduling trial dates or for delays in fixing trials but the distress caused often impacts on the quality of the victim’s evidence.

314. The use of “dedicated floating trials” were universally criticised by all victims and support agencies. Almost all High Court trials for sexual crimes are currently being allocated to a dedicated floating trial – trials scheduled for a particular High Court which can start on one of a number of days within the same week. This leaves the victim waiting each day to get a phone call to learn whether the case is going ahead.

“Floating trial diets cause great distress for rape complainers. They are being told it’s going ahead then it’s not going ahead; the trial is in Edinburgh and then it’s in Glasgow and vice versa. It is basically a system designed to get the worst evidence from people”. [Advocacy worker]

“You build yourself up each time and then you are let down it turns you into an emotional wreck and you just feel let down by the system.”

315. Until recently there could be five to six months between the Preliminary Hearing and the trial. With the addition of new courts, this period is reducing. ^[101]

316. For victims, there is a significant timeline from reporting the crime, being contacted by VIA, attending for interview at COPFS, reading their statement, having a court visit and actually giving evidence.

What would make a difference?

317. The treatment of victims and witnesses at court is a system-wide issue. When all the elements of the system work together, it can make a substantial difference to the victim’s experience.

318. The case studies below demonstrate two very different experiences.

319. One victim who gave evidence at court, acknowledged that her experience was greatly enhanced by various agencies working together to address her concerns and minimise, where possible, the impact of giving evidence, all of which gave her strength and confidence throughout the proceedings.

As an adult, A reported a family member who had abused her when she was a child. Prior to reporting the offending, A received support from Rape Crisis Scotland.

The arrangements that greatly mitigated her experience of attending court were:

• Excellent support she received from Rape Crisis both before and at court;
• Arrangements agreed with VIA to enter and leave the court building by a rear door to avoid seeing the accused;
• Being met at court by a Victim Support Officer who took her to a witness room via a private stairway to avoid seeing the accused; and
• Meeting the trial prosecutor before the trial commenced.

320. In contrast, another victim had a much more difficult journey.

• I had to constantly chase VIA for information. I felt as though there was a black hole of information. The only time VIA proactively contacted me was to tell me that the sentencing had been delayed.

• I asked to meet the trial prosecutor but that did not happen.

• I was told that there would be a screen at court so I would not have to see the accused but I was taken through the wrong door of the court and the accused was there, so in reality there was little point in having a screen.

• I got a letter advising he had been found guilty and remanded in custody. Then I got another letter advising they had made a mistake and he was on bail pending sentencing.

• Although there was a guilty verdict, I would never go through it again. I felt I received no respect – it was a battle from start to finish.

321. The time, effort, energy and resource invested in investigating and preparing cases for court, arranging special measures and engaging with victims and witnesses is pointless, if the key witness disengages at court, is physically unable to give evidence or is so demoralised and emotionally spent that they are unable to give their best evidence.

322. Our review of 2014-15 cases identified 16 cases where the victim disengaged with the process after the case was indicted. There were also a significant number of cases where proceedings were discontinued as the evidence given by the victim did not meet the prosecutor’s expectations which, in some cases, may be due to the stress and trauma of giving evidence.

323. While recognising that providing a safe and supportive environment for victims and witnesses is a system-wide obligation, as a key player, the prosecution has a vested interest in minimising, as far as possible, the traumatic effect of giving evidence at court. It also has a duty to take steps to allow victims and witnesses to have confidence to participate in court proceedings.

Court Management Strategy

324. There are a suite of practical measures available which, if implemented, can diminish the fear and trepidation of the unknown and assist victims and witnesses to give their best evidence. These include:

• A court familiarisation visit;
• Having access to their statement;
• Meeting with the trial prosecutor, preferably before the day of the trial;
• Pre-arranged plans to avoid seeing the accused at court, including agreed entrance and departure arrangements;
• Provision of a dedicated supporter – whether advocacy worker, or Witness Service;
• Provision of chosen special measures; and
• Agreement on how the verdict is to be communicated.

325. All of these measures are available and for many regularly put in place. However, they are dealt with in an incremental fashion. We observed many cases where arrangements fell apart for a variety of reasons including the unexpected absence of a member of staff, last minute changes to the designated court or a lack of communication.

326. Following service of an indictment and prior to any trial, to provide reassurance and certainty, we advocate a court management strategy, encompassing all of these measures, should be discussed and agreed with the victim. To provide reassurance the victim should be given a written copy detailing the arrangements that have been put in place.

327. The court management strategy will require co-operation from other criminal justice agencies, but as the victim is a key prosecution witness, VIA should take the lead in co‑ordinating the provision of such measures.

Recommendation 12

COPFS should ensure that a court management strategy is agreed with every victim and relevant agencies following service of the indictment as part of the Victim Strategy.