Victims in the criminal justice system - Phase I

Scottish Government

25. The Scottish Strategy for Victims was published in 2001 by the Scottish Executive, now known and hereinafter referred to as the Scottish Government. The Strategy was adopted by all major criminal justice agencies including COPFS, the Association of Chief Police Officers in Scotland ( ACPOS), the Scottish Court Service ( SCS) and the Scottish Prison Service.

26. Whilst there was commitment to shared ownership of The Strategy the Scottish Government confirmed it would retain the leading role. There was also a clearly stated commitment to monitor the progress of performance and develop The Strategy over time.

27. The Victims Steering Group was set up to provide this leadership role and was chaired by the Justice Minister. It was a multi-agency group consisting of the main criminal justice agencies and supported by the Victims of Crime branch of the Scottish Government.

28. This group was responsible for:

• establishing working groups to take forward The Strategy's aims and objectives
• monitoring progress
• publication of progress reports and
• providing advice to Ministers

29. This group last reported in November 2005 and we can find no evidence of any subsequent works or meetings of this group. There were 'Progress Reports' published in February 2003 and November 2004 and a Review published in November 2005.

30. The absence since then of a Ministerially-chaired national leadership group focusing solely on victims has caused concern to some stakeholders. The fact that the remaining national group has a focus on witnesses amplifies that concern. Finally when as we discuss in the following sections both the police and COPFS have joined their respective portfolios for victims and witnesses, we can understand why victims' groups in particular have this concern.

31. The main multi-agency working group in this field now appears to be the Witness Issues Group. As its name suggests, whilst working towards implementing some issues that affect victims such as the Vulnerable Victims legislation, its focus is no longer on victims purely in terms of The Strategy but rather as in the above example, where they are also witnesses in the judicial process.

32. Unlike some other jurisdictions, including England and Wales where there is a Commissioner for Victims and Witnesses in addition to the national 'Victims Champion' and Eire where there is a Commission for the Support of Victims of Crime, there is no such recognised independent position in Scotland to safeguard the position of victims in the criminal justice system. This increases the responsibility on the Scottish Government and the other parts of the criminal justice system to safeguard and promote these interests.

33. The Scottish Government has indicated that it is considering a further review of The Strategy and will likely publish this in 2011. However, throughout our inspection although we found some sense of frustration at an apparent lack of recent imperative relating to victims we found no wish to deviate from the original three objectives which were viewed as still broadly correct. We anticipate that the review will consolidate and add to the current strategy rather than rescind its principal aims and objectives.

34. We also understand that there may be an intention to revive the previously Ministerially chaired Victim Steering Group and as we highlight above this would appear to be a welcome step.

POLICE

National level

35. The Association of Chief Police Officers in Scotland ( ACPOS) represents the chief officers across Scotland. It states on its website that it "is the professional voice of police leadership in Scotland".

36. ACPOS progresses its work through a number of working groups called business areas. The ACPOS Criminal Justice Business Area is chaired by a Chief Constable. It has four portfolio groups working under it, one of which is the Victims and Witnesses group chaired by a Chief Superintendent.

37. This group meets quarterly and has representation from police forces, Scottish Government, Victim Support Scotland ( VSS) and more recently the Area Procurator Fiscal who holds the victims and witnesses portfolio for COPFS. Currently its work programme includes preparing to support the Scottish Government consultation on refreshing the Victim Strategy and refreshing the ACPOS/ VSS information sharing protocol. Representatives from this portfolio group also attend the Scottish Government-chaired Witness Issues Group.

38. ACPOS produces an annual document that assesses the context of policing in Scotland and seeks to focus activities on a number of priorities and outcomes. Of note to this inspection in its most recent assessment it highlights -

"Increasing confidence of victims to report crime"

as the first of a series of outcomes to be achieved in 2010/11 ¹⁰.

Force level

39. Forces generally focus their strategic liaison with victims groups through their community safety departments although some further work is carried out within functional portfolios. For example liaison with groups supporting sexual offences victims or domestic abuse victims is often undertaken by those departments and staff that work in these areas.

40. During this inspection some managers commented that the lack of a single victim's portfolio in forces prevented an overview being taken of the various strands and activities that involve victims. This issue is also illustrated in the differing processes and IT systems that support different activities relating to victims. These have evolved over time as new legislation, for example the Vulnerable Witnesses Act or new policy approaches, such as the ACPOS/ COPFS domestic abuse protocol have changed particular elements of service provision.

41. The differences in approach to victims across these areas have the potential to cause some confusion both to staff and victims. Some very tight procedural guidelines can result in quite different service outcomes for what victims might perceive as similar offences, for example offences that fall within or just outside of the ACPOS/ COPFS domestic abuse protocol. (see page 39)

42. We highlight throughout this report that we consider that clarity of service delivery towards victims is important to them. More broadly it has three principal advantages:

• internally it assists staff in identifying what should be provided to victims;
• it assists victims' awareness of and expectations about what may happen with their case; and
• It is likely to reduce the demand placed upon police and COPFS from victims seeking information about what is happening with their case.

43. While the issue of whether such a focus is best achieved through a single force lead or champion for victims is a matter for individual forces, we have seen this approach being successful however in other areas such as developing force responses to proceeds of crime legislation.

Divisional level

44. At a more local level policing across Scotland is delivered from within just over 30 divisions normally led by a Chief Superintendent. Similar to the force level, routine liaison will take place with local victims groups whilst individual staff will engage as appropriate in a more focused dialogue with partner agencies in relation to particular cases or areas of concern.

45. In relation to domestic abuse we saw some strong examples of leadership at divisional level with daily meeting structures focusing on case handling. Some policing areas that we visited were able to provide this level of focus across all crimes.

COPFS

Ministerial

46. Within COPFS we found a widely held understanding that the enhancement of the position of victims within the prosecution system is of fundamental importance to the Lord Advocate, the Ministerial head of the service.

47. Matters of significance are spoken to directly by the Lord Advocate. Of particular relevance to crimes covered by this phase of this inspection, we noted that during a debate in the Scottish Parliament in February 2005 the then Lord Advocate himself announced the departure by COPFS from its previous policy of not providing reasons or information on decisions not to prosecute cases in court.

48. "It was recognised that victims, witnesses and next of kin often have great difficulty understanding the reasoning behind the policy. Additionally it was in contrast to the COPFS commitment to the Scottish Strategy for Victims which seeks to ensure provision of information to victims of crime."¹¹

49. This was seen as being of seismic importance and a fundamental change in direction of COPFS. It was considered important that such a fundamental change was announced by the then Lord Advocate himself.

50. On appointment as Lord Advocate in October 2006, the current Lord Advocate Elish Angiolini stated " .. I want to ensure the rights and interests of victims and witnesses are at the heart of our justice service." Throughout the inspection the current Lord Advocate was widely cited as regularly attending events throughout the country in support of local COPFS initiatives relating to victims. This support was viewed positively by staff throughout COPFS as helpful in promoting this agenda.

National

51. Within COPFS itself the strategic leading national role to promote and safeguard the position of victims within the prosecution processes lies with the 'Portfolio holder' of the 'Witnesses' workstream. In 2009 COPFS initiated a system of national 'Portfolio holders' to take forward discrete areas of business within COPFS. This particular portfolio is not exclusively for victims but is for witnesses and incorporates victims and is variously called, Witnesses Portfolio and Victims and Witnesses Portfolio. This recognises that there is overlap of some of the issues that affect a victim in the criminal justice system with those that affect other witnesses. There are clearly other distinct matters of concern which relate to the crime and its consequences which lie exclusively with the victim. Currently a victim's standing and the services they receive relies to a large extent on the initiation of court proceedings and on them being required as a prosecution witness.

52. The Portfolio holder currently holds this position in addition to her principal post as Area Procurator Fiscal and recent move to head of Strategy and Delivery Division. She had however been the lead for Victims and Witness matters for some time within COPFS prior to this restructuring. Albeit the position is additional to other duties the holder is widely recognised both within COPFS and with partner organisations as an active lead for victims within COPFS. The Portfolio holder sits on various national bodies which deal with matters relating to victims and witnesses in the criminal justice system and it is clear from our inspection process that partners in the criminal justice system welcome her involvement.

53. The Policy Unit of Crown Office also has a lead for Victims in the position of Head of Victims and Diversity. This position is, as would be expected, more policy orientated than the Portfolio holder. There appeared to be some overlap in areas of responsibility between the new Portfolio holder and head of policy at the time of this inspection as the newer distinct function of Portfolio holder was being established. However the Policy Unit retains responsibility for development of advice and guidance for staff and the Law Officers in relation to victims, witnesses, bereaved relatives, vulnerable accused and child protection.

54. The head of Victim Information and Advice ( VIA) ¹², the VIA National Team Leader, is also recognised within COPFS, and by partner organisations, as a national lead for victims and vulnerable witness matters on an operational front. VIA previously operated as a discrete national unit within COPFS from inception in 2002 until it was fully integrated into the Area system in 2007. The position of Head of VIA National Team has been retained and remains a national resource for all COPFS staff, both VIA and non VIA staff.

55. There is a recurring theme in the national leads for COPFS, which is replicated in the police and ACPOS that there is combining of the position of victims and witnesses within the criminal justice system. Pragmatically there are reasons for this. In particular when victims are required to be witnesses many of the same support needs will be present for them as for non-victim witnesses to enable them through the judicial process.

56. The risk to provision for victims of this conflation is threefold:

(1) They are simply dealt with alongside all other witnesses.

(2) The ensuing standard of service is designed to be efficient for all witnesses rather than being enhanced where necessary for the smaller proportion of those who are also victims,

(3) Service provision may not start until a victim is considered a 'witness' - this was equated in the prosecution focussed service to being a witness in court proceedings.

57. In these ways we see provision at times failing to recognise the fuller consequence of the crime on the victim. The focus on the victim as a witness, simply like any other witness, may at times fail to recognise the particular damage and consequence to them as the victim of the crime and their legitimate needs relating to information provision and support. These needs remain irrespective of whether the criminal justice system 'uses' them as a witness in any court process.

58. At a time when all public sector provision is subject to scrutiny, COPFS may have to focus on its core functions of investigation and prosecution of crime. Within that context the levels of services provided to victims of crime, victims who are not called upon by the prosecution to be witnesses and those who are non-victim witnesses are necessary considerations.

59. This is an area which calls for wider discussion within the criminal justice community under the leadership of the Scottish Government which retains responsibility for all victim and witness needs.

Area leadership

60. COPFS is divided into 11 areas; these areas normally coincide with the boundaries of the eight Scottish police forces. The exception is Strathclyde which COPFS has divided into four areas.

61. Following on the appointment of the national 'Portfolio holder' for Witnesses COPFS has initiated a new structure of Area Champions/Members for the Witnesses Portfolio. It is intended the local 'Champions' assist the Portfolio holder generally and facilitate communication between staff in the areas, offices and units. This witness 'Champion' structure was relatively new at the point of inspection and their full remit and range of responsibilities was still being established and defined during the inspection process. This system is to be welcomed as COPFS increases its focus on the outcome of prosecution for the accused, the public and victims.

Local and operational leadership

62. There are local lead staff for some categories of crime. In particular in relation to this phase of the inspection process there are, in some areas, lead Procurator Fiscals for Domestic Abuse offences. It is generally recognised that Domestic Abuse cases have particular difficulties for the victims of those crimes due to the relationship between the victim and the perpetrator. This in turn often makes the prosecution of these cases similarly difficult and the contact between prosecutor and victim becomes critical. There was a common theme throughout the inspection process that across the country there was a high level of leadership and interest from senior management in COPFS in relation to the prosecution of cases of domestic abuse. In addition there is a dedicated Domestic Abuse Unit ( DAU) within Glasgow Fiscal Office (set up in response to the Glasgow Domestic Abuse Court pilot) which is headed by a Senior Principal Depute and a Principal Depute assisted by a team of 5 Procurator Fiscal Deputes and support staff. These members of the DAU are recognised within Glasgow COPFS, and the wider criminal justice partnership community dealing with offences of domestic abuse in Glasgow and elsewhere, as having a high degree of specialism and expertise in an often fraught and complex area for prosecution.

CONCLUSIONS

63. We found a strong level of leadership in both COPFS and the police. This was recognised both within the organisations by staff and also by other criminal justice partners and stakeholder organisations.

64. We noted a lack of direct focus on victims which to some degree appeared to be as a result of combining victims and witness issues. It is clear that the police and COPFS place considerable emphasis and focus on supporting victims who are also going to be witnesses within the judicial process. Whilst welcome, this can leave in quite stark contrast, the provision for victims whose cases don't progress to court.

65. This will obviously be more apparent in this phase of the inspection than in subsequent phases. As the Scottish Government prepares to review The Strategy we welcome their consideration of reconvening the Victims Steering Group particularly if it retains the leadership provided by a Ministerial chair. This could signpost an appropriate singularity of focus and strategic intention. It could ensure that victims' needs are addressed in their own right, irrespective of whether they are required as witnesses to support investigation and prosecution.