Victims in the criminal justice system – Phase II

Introduction

143. This chapter of the report examines the stage at which a crime has been reported by the police to the Crown Office and Procurator Fiscal Service. The normal practice is that the report is considered by a Procurator Fiscal Depute who makes a decision on whether any action is to be taken in relation to the report, and accordingly what that action should be. This decision making process is referred to within COPFS as "case marking". During this stage the Procurator Fiscal Depute will consider the information provided by the police and reach a decision on whether there is sufficient evidence available and if so, the most appropriate way to deal with the accused. For cases considered in this report all were determined as being suitable for formal proceedings at summary court level.

144. This chapter will examine key areas around the initial work of COPFS when a case is received as they relate to the victim of the crime. In particular we examine COPFS policy, the provision of information to victims and the initial assessment of vulnerability.

Strategy and Policy

145. As previously stated COPFS has committed to the Scottish Strategy for Victims.

146. The Scottish Strategy includes a very strong statement of intent on the provision of information to victims:

"Information for victims will be offered to all, and agencies will not rely on victims to request it. Not all victims are able to phone or visit offices to request information and some feel that their case is too trivial to bother anyone about. Victims who have not been cited as witnesses do not always know when to ask for information eg if they do not know the trial date, they, or their representatives, will not know when to ask for information about the verdict."

Leadership - Cascading Through the Organisation

147. Leadership in relation to victims of crime is apparent from the very top of the organisation. The Lord Advocate Frank Mulholland QC has publicly stated:-

"What I want to see is the rights of victims properly recognised and entrenched in the criminal law."

148. We found evidence of this approach from the COPFS portfolio holder for Victims and Witnesses and a raised awareness of victim issues from most of the senior members of staff to whom we spoke.

COPFS Policy

149. COPFS sets out its current policy in relation to the provision of information to victims in two outward facing documents: the leaflet Our Commitments to Victims and Witnesses ( OCVW) and the booklet Our Commitments to Victims and Witnesses. It supports these documents with a Handbook for Staff of the same title. COPFS launched these commitments following Phase 1 of this inspection and after we had initiated this phase. We found evidence of COPFS attempting to respond to the recommendation in the Phase 1 report in relation to consolidation of their commitments to victims.

150. The 10 Commitments to Victims and Prosecution Witnesses are as follows:-

We will:

1. Give you respect and a professional service at all times.
2. Communicate with you clearly and effectively.
3. Give you the information you need when you need it.
4. Deal with your case as quickly as possible.
5. Require you to give evidence in court only when you have to.
6. Ensure you can communicate with us if your first language is not English.
7. Take account of any extra support you may need.
8. Give the judge information about the effect of the crime on you.
9. Tell you how to claim expenses and deal with your claim as quickly as possible.
10. Work with other organisations to help you get the services you need.

Recent Developments

151. Following its launch of OCVW in November 2010, COPFS released an e-learning package in March 2011 for completion by all staff by the end of June 2011. The mandatory nature of the training for all staff demonstrates a considerable commitment to these issues by COPFS, and does much to raise the profile of victim and witness issues within the organisation. COPFS had not tested the impact of the training at the time of writing this report.

152. Additionally, COPFS ran the pilot of a newly developed training course, Victims and Witnesses, in June 2011. The target audience for this course is all COPFS staff dealing with Victims, Witnesses and Nearest Relatives. The development of this course, and the title, has helped to raise staff awareness of victims and witnesses issues and ensure that they are firmly placed on the COPFS landscape.

153. It is noted that with the number of participants allowed for and with the course scheduled to run twice a year it would take a significant period of time to deliver the training to all staff. COPFS plans to deliver the training in Area offices would assist. However no indication of the staff numbers involved in this was provided. It is therefore unknown how long it will take to deliver the training to all staff dealing with Victims, Witnesses and Nearest Relatives. During our inspection we noted that the sessions were weighted towards VIA referral categories at the expense of other victims and that there were no inputs from outside agencies such as Victim Support Scotland. COPFS has now advised that the course will now include inputs from the Witness Service and Victim Support Scotland.

154. The provision of this range of training is a positive development although we did find that the OCVW, e-learning and training course were launched in an uncoordinated way rather than as a cohesive package that would have delivered a more powerful message to staff.

Proactive Contact with Victims

155. The current policy of COPFS promotes the referral of victims and witnesses assessed as vulnerable or potentially vulnerable in terms of the Vulnerable Witnesses Act 2004 to the specialist support service within COPFS provided by Victim Information and Advice ( VIA). This is positive practice. Beyond that, COPFS will provide other victims with general information about the criminal justice system, information on their case and information about where to get support; but importantly, this is qualified by the statement "if they ask for it".

156. This clearly falls short of the commitment made in the Scottish Strategy for Victims.

157. In relation to information provision by COPFS the Scottish Crime and Justice Survey 2009/10 reported findings that in crime where there was contact with the Procurator Fiscal, victims' satisfaction was highest with the helpfulness of the staff and how the case was dealt with overall. Their satisfaction was lowest for the extent to which they were kept informed about the case and how quickly the case was dealt with.

158. This is a significant finding, as the right to information is an important one for victims of crime as reflected both in the European Union Framework Decision on the Standing of Victims in Criminal Proceedings, the Scottish Government's 2001 Scottish Strategy for Victims and the Scottish National Standards for Victims.

Provision of Information to Victims

159. COPFS's leaflet on Our Commitments to Victims and Witnesses contains ten high level commitments and is available, as is the supporting booklet, on the COPFS website. COPFS also displays the 10 commitments in its offices and the supporting booklet is displayed in some. This is positive, although as we note below, we found that COPFS is not always proactive in providing this information to all victims.

160. The COPFS website also allows access to a Statement on the Treatment of Victims and Witnesses, from 29 June 2005, under the head Victims of Crime. There is much overlap between this Statement and OCVW, which clearly echoes the contents of the Statement. The launch of OCVW within COPFS made reference to the fact that they contained nothing new and was akin to a re-branding. This being the case there is the potential for confusion in victims of crime having access to both the Statement and OCVW.

Recommendation 7 - COPFS Website - Consolidation of Available Information
That COPFS consolidates the material available to victims on the COPFS website or removes older out-of-date material.

161. As outlined in paragraph 155COPFS are proactive in responding to the information needs of vulnerable or potentially vulnerable victims. However, for those cases not referred to VIA we found that COPFS will have no proactive contact with a victim until and only if a date for trial is fixed. To contextualise this of the 275,503 reports received by COPFS in the year 2009/10 only some 27,197 victims and witnesses were referred to the VIA service. Of those 27,197 victims and witnesses 56.5% were referred to VIA in relation to cases of Domestic Abuse. Therefore setting this important referral category aside the number of victims and witnesses referred to VIA in this timescale represents a very small number in relation to the number of cases reported to COPFS within one year. It should be noted however that not all reported cases will have an identifiable victim.

162. Should a trial be fixed, and if the victim is a witness, they will receive a citation to attend at court. The citation will include a covering letter with telephone and website details for COPFS and a 'Being a Witness' booklet. The letter refers to the phone number for COPFS Enquiry Point should the recipient have any queries.

163. Enquiry Point is a single telephone point of contact for dealing with all external enquiries to COPFS. It was set up in 2008/2009, and rolled out to all COPFS offices in October 2010. Enquiry Point now deals with in excess of 29,400 calls each month. Enquiry Point staff are specifically trained to answer queries and are provided with resources to allow them to do so. Their resources include access to detailed instructions on how to answer specific calls and access to COPFSIT systems to allow them to obtain information to assist in the answering of enquiries. In certain circumstances and if unable to deal with a call Enquiry Point staff will forward the call to the appropriate Procurator Fiscal's Office to be dealt with there.

164. The 'Being a Witness' booklet contains a good deal of information, including the 10 commitments of OCVW. OCVW was added to the booklet in November 2010. However there are no contact details contained within or attached thereto despite the fact that the back page invites recipients to contact the Procurator Fiscal's Office should they require the document in a different format or language. In the body of the booklet witnesses are referred to the separate 'Going to Court' document for address and telephone numbers.

165. A telephone contact number would be a useful addition now that COPFS has the benefit of Enquiry Point and a single phone number for enquiries. This would be more convenient to witnesses than the present arrangement which requires reference to more than one document.

166. We also found that there is no reference to the OCVW Booklet which expands and explains the statements confirming our finding that COPFS puts the onus and responsibility for seeking information on to the victim/witness, unless they have been referred to VIA.

Suggestion 2 - Enquiry Point Telephone Number
COPFS should add the phone numbers for Enquiry Point to the Being a Witness booklet.

167. Significant in this context is the number of cases that result in a trial (5,572 at summary level as outlined in paragraph 34) and COPFS's 'opt-in' policy on information provision to the majority of victims. Only on being cited as a witness (not all victims will be) would a victim receive contact details for COPFS. Prior to this they would require to seek out contact details and make contact with COPFS in the absence of a COPFS reference number. They would have no awareness of COPFSOCVW unless they had accessed the website, or visited an office, and only then might they realise that they could request information.

168. Commitment 3 in the OCVW leaflet states:

'[We will] Give you the information you need when you need it.'

whereas the explanatory booklet confirms that the information will be given if asked for. Taken at face value a victim might assume that they will be given the information they need when they need it, not that they will need to request it.

169. This is a major dilution of the commitment, and as we report above at paragraph 155 above, falls short of the commitment made in the Scottish Strategy for victims.

170. We examined 163 records in our audit of cases. Of those 163 victims, all were essential witnesses in terms of the evidential proof of the case. Only 90 were cited to give evidence and so were required to attend court. The cases of 73 victims were concluded in other ways - some by pleas of guilty, some by discontinuation of proceedings. Of those 163 victims in only ten cases could we find any evidence of contact between a member of COPFS staff and the victim.

171. We assume that those 90 victims (save for any VIA referrals within the remaining 73) would have automatically received correspondence from COPFS. That correspondence would have been a citation pack, including a citation, covering letter, map of the court location and the Being a Witness booklet. From our review of the audit findings we could not confirm whether the booklets were sent to the cited witnesses.

172. Our enquiries with the National Print Unit, which is the unit within COPFS responsible for the sending out of witness citations and witness correspondence, confirmed the process for sending citations. First citations are sent out by post except in exceptional circumstances where there is insufficient time, in which case personal citations are issued direct from the individual Procurator Fiscal's Office concerned. All first citations contain the Being a Witness booklet. If a second citation is to be generated no booklet is included as the assumption is made that the recipient received this the first time around.

173. There is clearly a potential gap if a person receives a second citation. The covering letter with the first citation does urge the witness to 'retain' the booklet until the case has concluded. If the victim/witness is countermanded they are advised that they are no longer required on the date for which they were cited and the reason for this. For instance, this may be because the trial is to be adjourned, or because a warrant has been granted for the arrest of the accused. They are not advised what this means for them. They are not advised that they may be required again, that the case is not concluded.

174. An example of the impact this approach has on victims was found in a response to our telephone survey of victims:-

"No information before citation and only knew what citation was about as I recognised name {of the accused} from newspaper article."

175. Clarity of information and, as the Scottish Strategy states, 'in the right level of detail' is essential here. The above illustrates the importance of communication for victims of crime, a matter we address in Recommendation 9 below.

176. In terms of repeat citations, on the one hand victims/witnesses are advised to 'retain' a booklet until the completion of the case, on the other hand they are not provided with clear, detailed information allowing them to understand when that is.

177. This is a situation easily remedied by as little as an additional sentence in countermand letters advising recipients that they either will not (eg accused has pled guilty), or may be required to attend on a future date. This would leave them in no doubt as to whether the case was completed or not.

Recommendation 8 - Improve Countermand Letters
That COPFS includes a sentence in countermand letters advising recipients that they either will not (eg accused has pled guilty), or may be required to attend on a future date.

178. Of those witnesses who responded to our survey and who answered the question as to how well they were kept informed of their case by COPFS 27 out of 43 (63%) were not satisfied with how they were kept informed of their case by COPFS. On being asked whether the information they received from COPFS was sufficient for their needs, 24 of the 39 who answered this question (61%) stated that they had received no information from COPFS. As was the case in the Phase 1 report, and as evidenced above, we found little recorded evidence of victims proactively seeking information in the cases we reviewed.

179. We asked support agencies about the occurrence and effectiveness of communication between COPFS and victims. Victim Support Scotland responded to this confirming their view that the approach is not as victim friendly and focussed as it could be. Significantly their view was that unless VIA were involved, and they correctly identified that VIA are not involved very often in summary cases, there is a possibility of no information being provided to victims at all.

Good Practice - Dumfries and Galloway - Proactive Approach
During our fieldwork visits we came across an area of good practice in Dumfries and Galloway. In the Dumfries office we found both the OCVW Leaflet and Booklet clearly on display with copies available for visitors to the office, together with the framed OCVW, which we found in all offices. We were advised by a legal member of staff that they had given talks to community organisations and support agencies and had outlined OCVW and taken along the supporting leaflets and booklets to be handed out to those in attendance, underlining that these contained the level of service that could be expected from COPFS.

This approach clearly raises the profile of OCVW in a community and sends a clear message that information can be obtained if sought.

It was also in the Dumfries office that we were pointed to the Victims and Witnesses Portfolio Group member by all staff that we spoke to. The Portfolio Group member was clearly recognised within the office in relation to their role and active in promoting the portfolio there.

180. In summary, based on our case review and that of Scottish Criminal Justice Survey we conclude that in general COPFS is not routinely providing all victims with the information they need when they need it. COPFS needs to clarify their outward facing statements for victims.

181. If it is to continue with an "opt-in" approach it must be clear and accessible to victims. They need to know that they can opt-in and how to do that.

182. COPFS has come a long way on the journey to provide victims with information. However there is still work to be done before they can be said to be making information available to all victims when they need it.

Recommendation 9 - COPFS Information Provision to Victims of Crime
COPFS should ensure that it proactively provides all victims with the information they need when they need it.

Victim Vulnerability

183. A key role of COPFS during the initial assessment of a case is to consider the vulnerability of victims and witnesses with a view to taking any steps necessary to support the victim or witness during any subsequent court proceedings. The statutory basis for this is The Vulnerable Witnesses (Scotland) Act 2004.

184. The legislation was supported by guidelines from the Lord Advocate to Chief Constables and the police together with guidance to COPFS staff in the form of Crown Office circulars and bespoke training.

185. The role of the police in reporting on vulnerability is a key part of this and information on vulnerability should be included in the SPR during the reporting phase. Guidance on how and where to report on vulnerability is clearly detailed in guidance on the completion of the SPR and in specific force policies which detail those categories of vulnerability.

186. Police forces have also provided detailed guidance to officers to assist the identification of vulnerability and training is offered during initial Probationer Training at The Scottish Police College.

187. During the inspection we examined this training and found that officers spent a considerable amount of time on the issue of vulnerability and victim care. This includes inputs on Appropriate Adults, dealing with child witnesses and a dedicated input entitled "The Protection of Adults at Risk of Harm and Vulnerable Group" as well as training on dealing with domestic abuse and missing person cases where vulnerability will be present. In addition officers' knowledge is tested in a practical exercise scenario that includes engagement with victims including vulnerable victims.

188. It was outwith the scope of this inspection to fully evaluate the effectiveness of the training delivered at the Scottish Police College in respect of vulnerability but we are content that there is a culture where vulnerability is recognised as a priority within probationer training and were encouraged by what we encountered.

189. Training for supervisory and management ranks at the Scottish Police College is delivered at The Leadership and Development Division. The inputs within this division have recently undergone a review to improve leadership development across all ranks and management roles within the police. We noted that there were no specific inputs to either supervisors or managers on victims of crime although there is a strong emphasis on quality of service which includes the importance of feedback to service users and appropriate supervision and management to ensure the maintenance of service standards.

190. The approach within the Leadership and Development Division is to test learning through exercising using practical scenarios. At Sergeant and Inspector level courses this includes the running of daily crime tasking meetings which are used throughout Scotland to develop a planned and intelligence based response to emerging crime problems. We were informed that at present victim issues were not part of the scenarios considered in this exercise but given the key role of such Daily Tasking meetings in the identification and planning of a response to vulnerable and repeat victims, together with the critical role of Sergeants and Inspectors in monitoring the delivery of the service to victims, we would encourage the inclusion of victim based scenarios in such training exercises as a means of informing managers of the importance of victim needs.

191. COPFS designed and delivered training on the roles and responsibilities of staff in relation to the Vulnerable Witnesses Act 2004 to VIA and other staff at the time. This training has evolved and is now part of the new Victims and Witnesses Training Course as referred to in paragraph 154.

192. Once the police submit an SPR, the Procurator Fiscal Depute, acting on the information contained within the SPR, will consider whether a victim is vulnerable or potentially vulnerable. If victim is vulnerable, the policy of COPFS is that the victim or witness must be referred to its Victim Information and Assistance Service ( VIA). COPFS policy also defines categories of cases which should be referred to VIA automatically.

VIA's REMIT GUIDANCE

On initial case processing, or as soon as relevant criteria are apparent, whichever is sooner, the following must be referred to VIA, under the first referral heading that relates to the case:

1. bereaved nearest relatives in cases involving deaths:

• which are reported for consideration of criminal proceedings;
• where a Fatal Accident Inquiry is to be held;
• where there will be, or there are likely to be, significant further inquiries; or
• where in all the circumstances it is agreed that referral is appropriate.

2. All identifiable victims in solemn proceedings

3. Victims in cases of domestic abuse (partners and ex-partners).

4. Victims in cases where a crime has been committed because the offender thinks that the victim is of a particular race, religion, sexual orientation, transgender identity or is disabled, whether that is true or not (Hate Crime)

5. All victims of sexual crime.

6. Child victims or child witnesses in any case.

7. Other cases in which victims or witnesses may be vulnerable in terms of the Vulnerable Witnesses (Scotland) Act 2004 and may require help giving evidence or may have additional needs due to their circumstances or personal characteristics. These can include but are not restricted to:

• asylum seekers
• dependents abusing parents/carers, or by parents/carers abusing adult dependents
• English not as a first language
• learning difficulties
• mental health issues
• physical disabilities
• sexual orientation/gender identity (Lesbian, Gay, Bisexual, Transgender)
• terrified of accused and/or of reprisals

8. Other cases in which a legal member of staff believes the victim would benefit from VIA involvement.

193. COPFS added the last referral category (8) to the remit for referral to VIA on 14 October 2010 following the publication of the Phase 1 Report and to comply with a service gap identified in that report. This provides for a legal member of staff to make a referral where he or she believes the victim would benefit from VIA involvement.

194. This change was an important and positive one ensuring that where victims would benefit from the assistance of VIA there is the facility for them to be so referred, even where they do not fall into the other referral categories.

195. During our inspection we found changes had not been made to the COPFS Future Office System ( FOS), which is the COPFSIT system for managing the marking and processing of cases, to reflect the introduction of this new category. The absence of this undermines the use of this category and also makes it more difficult to monitor its use.

Suggestion 3 - Monitoring of Referrals to VIA
COPFS should consider enhancing its IT to enable accurate monitoring of referrals to VIA where a legal member of staff believes the victim would benefit from VIA involvement.

196. We explored the identification and assessment of vulnerability by auditing SPRs and COPFS case papers and by exploring the issue with both police officers and COPFS staff. Victims were asked their opinion on the effectiveness of policies during the telephone survey.

197. There are two categories of referral to VIA. The first relates to the type of case eg domestic abuse, sexual cases, deaths, hate crime and solemn proceedings. The cases audited for this inspection were not cases falling into these categories.

198. The second category relates to the victim, who may be vulnerable in terms of The Vulnerable Witnesses (Scotland) Act 2004, or the additional category, where a member of legal staff believes that they would benefit from VIA involvement.

199. Whilst responsibility for victim vulnerability lies with both the police and COPFS for a Procurator Fiscal Depute to make the decision that a referral to VIA is appropriate, in a 'victim' referral, they require information on a victim's vulnerability to be provided by the police. Our audit of COPFS case papers and SPRs found that only a small number of the 163 cases were referred to VIA due to the victim being eligible for referral with a small number of additional cases referred due to the vulnerability of a witness.

200. There are two places within an SPR where a Procurator Fiscal Depute may expect to find information on vulnerability. These are within the narrative of the report, particularly the remarks section, and in the Witness Details section, which is a mandatory field for completion by police officers.

201. We found that in almost all cases the SPR did contain information about vulnerability, albeit this tended to be within the witness section of the SPR and simply confirmed there was no vulnerability. Only a small number of SPRs included additional information on vulnerability within the Remarks Section and these related to the accused rather than the victim.

202. We did find some cases where additional information on victim vulnerability was included even though the victim was classified on the SPR as not being vulnerable. This perhaps raises questions around the approach taken by police officers' to identifying vulnerability. It is nevertheless recognised that the nature of the cases reviewed in this inspection ie where officers contact with the victim is likely to be brief, may have made identification of some categories of vulnerability more difficult.

203. We explored this with police officers during Focus Groups and found that they were aware of the Vulnerable Witnesses (Scotland) Act 2004 and the various categories within this legislation. Officers were confident about marking a victim or witness as vulnerable if it was obvious to them that they fell into a specific category eg disability, age etc. They were less confident about their ability to categorise for less obvious or general vulnerability categories. Examples given included mental health or where the victim suffered from fear or distress.

204. The nature of mental health or stress means that it will often be hidden and difficult for police officers to identify these areas of vulnerability. There is also an acknowledgement that officers have no power to require a victim or indeed an accused to disclose information that may help identification of a hidden vulnerability.

205. Staff from COPFS concurred with this stating that the police often did pass information to COPFS but the information was not always complete or accurate. On occasion COPFS had to request further information which can of course be time consuming and cumbersome. There was recognition that identification of vulnerability was difficult for police officers.

206. In conclusion, it is apparent from the inspection that officers are aware of certain types of victim vulnerability and the need to report this within the SPR. Given the continued challenges of identifying less obvious vulnerabilities we would encourage police forces and COPFS to continue to monitor their effectiveness in this area and continue to promote the importance of this issue to their staff.

Suggestion 4-Victim Vulnerability Policies
Chief Constables and COPFS should continue to promote policies aimed at supporting vulnerable victims of crime and should monitor their use and effectiveness.

207. During our telephone survey we asked victims to give their views as to whether their needs in relation to attending at court were met. Whilst only six victims responded to this question, reflecting the small number of cases which proceeded to trial, all were content with the service provided.

208. One of the respondents to the questionnaire stated:-

"Really impressed by service after court and VIA. All witnesses should get the same treatment."

209. During the inspection we spoke to VIA staff in all three COPFS areas and found them to have a positive attitude to their work. There was evidence that they proactively looked for referrals and worked closely with legal staff if there was any doubt about a referral. This approach is to be commended.

210. We also asked national support services about their views on how vulnerability was addressed. Victim Support Scotland highlighted the established protocol between them and VIA and confirmed that the working relationship between the two organisations continues to improve.

211. They took the view that victims qualifying for special measures seemed to be well identified by COPFS who work well with VIA and the Witness Service, an arm of Victim Support Scotland which provides information and support to all witnesses at all Sheriff and High Courts, to ensure that these are used.

212. Their perception was that as many witnesses fall outwith the criteria for special measures, ie they do not fall within the statutory definition of a Vulnerable Witness, there continues to be a requirement for enhanced flexibility in the system.

213. All agencies consulted spoke highly of the service provided by VIA. This also illustrates the gap in service provision between those who qualify for a service by VIA and the majority of victims at summary level who do not. However the recommendation contained in this report to enhance communication between COPFS and victims of crimes on the progress of their case will go some way to close this gap.

The Future

214. At the time of this report COPFS had not yet established an evaluation framework for OCVW and there is currently no effective monitoring of the delivery of the commitments. COPFS has an evaluation process in the planning stage and it is commendable that evaluation of OCVW is being actively considered. This is post hoc with the evaluation process being tailored to now existing OCVW.

215. The planning around the evaluation process may have been more effectively carried out at the same time as OCVW were crafted to ensure that the commitments therein were measurable. Whether OCVW can be measured by the evaluation process being considered remains to be seen.