Victims and Witnesses (Scotland) Bill: Stage 1

– in the Scottish Parliament at on 19 June 2013.

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Photo of John Scott John Scott Conservative

The next item of business is a debate on motion S4M-06987, in the name of Kenny MacAskill, on stage 1 of the Victims and Witnesses (Scotland) Bill.

I call Mr MacAskill to speak to and move his motion. Cabinet secretary, you have 13 minutes.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I am grateful for the opportunity to open the stage 1 debate on the Victims and Witnesses (Scotland) Bill and I thank the Justice Committee and the Health and Sport Committee for their efforts in scrutinising the justice and health elements of the bill at stage 1 and for preparing their comprehensive stage 1 reports. I also record my thanks to the groups and individuals who provided evidence to the committees during stage 1, as well as those who have engaged directly with us during the bill’s development and the parliamentary process to date.

The bill’s clear aim is to put the needs of victims and witnesses at the centre of the criminal justice system. It includes proposals that ensure that justice agencies set out clear standards of service for victims and witnesses; that give victims and witnesses a right to access information about their case; that improve the identification of vulnerable witnesses and the support available to them; that introduce a victim surcharge and restitution orders to make offenders contribute to the cost of providing vital support to the victims of crime; and that make various other improvements to the justice system.

The bill also contains proposals to establish a national confidential forum that will give adults who were placed in care as children the opportunity to recount their experiences in a confidential and non-judgmental setting to an independent panel. Those proposals sit separately from the justice-related proposals, and I will turn to that part of the bill in due course.

The bill’s proposals have not been developed in isolation. In addition to the formal consultation exercise, we have in developing the bill engaged extensively with victim support groups and individual victims. Only this morning, I visited Victim Support Scotland’s national support centre in Hamilton and heard from volunteers and indeed victims about their experiences of interacting with the justice system and the improvements that would have made the process a little easier for them.

It is important to note that the bill cannot be seen in isolation. It is integral to our wider making justice work programme, which brings together a wide range of reforms to the structure and processes of the courts, access to justice and tribunals and administrative justice. That programme has been and is being developed with partners across the justice system, including the Crown Office and Procurator Fiscal Service, the Scottish Court Service, the Scottish Legal Aid Board and the Police Service of Scotland, and represents the most significant set of reforms to our courts for more than a century. One of the programme’s central objectives is to improve the experience of victims and witnesses, and the bill is a key component of that.

I warmly welcome the support of both the Justice Committee and the Health and Sport Committee for the general principles of the bill and their recommendation to the Parliament that they be approved. We recognise that the need for witnesses and victims to be cared for and their care to be improved is a matter that is shared across the political divide.

I turn, first, to the Justice Committee’s report. It is clear that although the committee is generally supportive, concerns have been raised in certain areas and requests have been made for further clarification. I will address a few of those issues briefly now and will be interested to hear members’ views during the debate.

The use of the word “victim” in the bill has raised concerns that the presumption of innocence of the accused may be compromised; it was pointed out that the term “complainer” is used in other legislation. The report recommended that the term “victim” be defined in the bill. I have made it clear from the start that ensuring that the rights of the accused are not compromised is absolutely critical, and I welcome the committee’s scrutiny of the bill from that important perspective. However, I do not believe that the bill poses any risks to the presumption of innocence. While there is no overarching definition of the term “victim”, the bill provides clarity where necessary in the context of individual sections—for example, by making it clear that the individuals referred to may be victims or alleged victims.

I look forward to members’ comments today and, although I am not persuaded that an overarching definition is required, I am happy to consider whether any further clarity may be necessary. If members have such views, I will be happy to meet them for discussion.

Another area of concern that was raised by the committee is the proposed right to object to special measures for vulnerable witnesses. The intention behind those provisions was not to complicate proceedings or to undermine the support that is available to vulnerable witnesses, but rather to ensure compatibility with the European convention on human rights, as we are required to do, and to give the court the flexibility and discretion to consider any legitimate concerns that are raised by any party to the proceedings.

While we do not expect objections to be lodged or granted very often, there is clearly a possibility that there may be legitimate concerns about the particular special measure to be used. Therefore, we consider that there should be a way of raising objections with the court. I certainly understand the concerns around how the proposals may operate in practice.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

Is the cabinet secretary saying that the existing law is not compatible with the ECHR? What does he have to say to Scotland’s Commissioner for Children and Young People and, I believe, others, who say that there is no ECHR issue with regard to children, for example?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

We would not have laws in this country that were not compatible with the ECHR, because of the nature of how this Parliament is established. I can assure Mr Chisholm of that. Equally, we wish to ensure that those who may seek to challenge this legislation in respect of the rights of an individual who may be facing a charge are able to be dealt with. We are looking to establish a way to take account of the right of the accused, which may be used very rarely but which would give their agents the opportunity to raise the matter with the court, for the judiciary ultimately to preside. That would not take away from what is clearly intended—and, indeed, delivered—in the bill: that we ensure that vulnerable victims and witnesses have the right to express themselves.

I think that I can satisfy the member that no matters will be made worse in terms of children’s hearings. Equally, we will provide an opportunity to build upon the good work that will be done to help vulnerable witnesses, balancing that with a very few cases in which there may be a legitimate right at least to put an objection, ultimately to be considered by the judiciary.

As I advised the committee, I will give further consideration to the issue, and I can confirm that my officials have begun discussions with the Crown Office and Procurator Fiscal Service.

Photo of Jenny Marra Jenny Marra Labour

Does the cabinet secretary share the concerns of organisations such as Scottish Women’s Aid that the challenge to the use of special measures may increase circumstances of anxiety and reduce confidence among witnesses about giving their evidence in court?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I do not believe so. I met Scottish Women’s Aid just recently and I believe that, overall, the bill will provide what such agencies clearly desire. However, to ensure compliance—to ensure that we provide a safety net—the issue needs to be dealt with appropriately in a balanced way, which is why we have started discussions. I assure Ms Marra that the discussions will not simply be with the Crown—they will also be with agencies such as Scottish Women’s Aid, to ensure that we reach the right balance.

On the proposals in the bill to put a duty on justice organisations to set out standards of service for victims and witnesses, the committee suggested that the standards should be set out in statutory guidance to be approved by the Parliament, along with details of a reporting mechanism. Although it would be possible to set out each individual set of standards in that way, I have been very clear that they must be organisation specific and I am concerned that such an approach would slow down the establishment of the standards.

I am satisfied that the organisations will work together—with input from victim support organisations—to create robust sets of standards, without the need for further parliamentary scrutiny. However, as I noted to the committee, I am willing to consider further whether there should be a more formal reporting mechanism to monitor how the standards are working in practice. We will discuss that with our justice partners.

I was pleased to note the committee’s view that a compelling case has not been made with regard to the establishment of a victims’ commissioner. I share that view, along with several victim support organisations, including Victim Support Scotland and Scottish Women’s Aid. Given the excellent work that is being done by our victim support organisations in Scotland, I continue to believe that the establishment of such a post would simply be a duplication of effort and an extra layer of bureaucracy, and that our limited resources would be better used in directly helping victims of crime.

On the provision in the bill for the establishment and operation of the national confidential forum, again I thank the Health and Sport Committee for its careful and thoughtful scrutiny during stage 1. I also thank the witnesses who provided evidence, in particular former residents of childcare institutions who have shown great fortitude in coming forward to share their views. We have listened with great care and attention to those views, which will help to ensure that the national confidential forum makes a real difference to the lives of people who were placed in institutional care as children by helping to improve their health and wellbeing and contributing to the improvement of provision and support to looked-after children.

I am delighted that there is widespread support for the establishment of the forum. I am also heartened by the recognition of the value of acknowledgement to people who were placed in institutional care as children, in particular survivors of abuse and neglect. Those survivors have been asking for their experiences to be heard and acknowledged for many years and we are responding.

In 2010, we established the time to be heard pilot forum for people who were placed in Quarriers village as children. The pilot forum, which operated for only a matter of months, was attended by nearly 100 former residents of Quarriers. The independent evaluation of the experience showed clearly that it was of positive value and benefit to the people who took part and that they felt heard and believed.

It is our intention, with the bill, to extend that opportunity to all the people who were placed in institutional care as children in Scotland. The experience of time to be heard clearly demonstrates that acknowledgement is of value and that it is most certainly not a second-class option. The experience also shows that the benefits to people of acknowledgement are not contingent on access to justice remedies. For some people, justice remedies hold little appeal, but safe, supported, confidential acknowledgement does.

It was the Scottish Government that approached the Scottish Human Rights Commission in 2009 to develop a human rights framework to inform the development of what has become the national confidential forum. That approach, in turn, led to the interaction process, which was mentioned by several stakeholders who gave evidence.

The Scottish Government is participating in the interaction process with an open mind. However, we do not intend to wait for remedies that may arise from the interaction process to take forward the establishment of the national confidential forum.

Photo of Elaine Smith Elaine Smith Labour

Cabinet secretary, could you come to a conclusion?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

People should not be denied the opportunity of acknowledgement—they should not be denied that benefit.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I am sorry; I have been asked to wind up.

I welcome the wide support to date for both the justice and health elements of the bill. We are happy to discuss and debate the bill, as would be expected, at stage 1 and that option is open to Ms Marra outwith the chamber or at a future date.

I thank the Presiding Officer for her indulgence, and I move,

That the Parliament agrees to the general principles of the Victims and Witnesses (Scotland) Bill.

The Deputy Presiding Officer:

I call Christine Grahame, who will speak on behalf of the Justice Committee. Ms Grahame, you have nine minutes.

Photo of Christine Grahame Christine Grahame Scottish National Party

As the Presiding Officer says, I speak in this debate on behalf of the Justice Committee, which was the lead committee considering the bill. However, I want to put on record—I feel a letter to the Standards, Procedures and Public Appointments Committee coming on—that I have never understood why, in a stage 1 debate, the cabinet secretary or minister gives the Government’s response to the convener’s report on behalf of the committee before the convener has reported to the chamber. It would be much more useful if I got to say my stuff and then—if he will forgive me for saying so—the cabinet secretary gave his response afterwards. Much of my speech has probably been pre-empted, but off I go anyway.

The bill has two main purposes: first, to improve the experience of victims and witnesses, which was the focus of the Justice Committee’s consideration; secondly, to create the national confidential forum, which was examined by the Health and Sport Committee and which my colleague Duncan McNeil, along with other members, will speak about. The Justice Committee has already written to the Health and Sport Committee to say that we anticipate that it should consider those provisions at stage 2, as we took no evidence on them and that would seem an appropriate division of the bill.

I, too, thank all those who provided written and oral submissions. I also thank the members of the Justice Committee, which it is always a pleasure to chair—that is a brownie point for me. I also thank all those victims who spoke to committee members about their individual experiences of the criminal justice system during a specially arranged private and informal discussion. Key themes from that session were reflected in the committee’s formal scrutiny of the bill and in its report. I know how difficult it was for those people to speak to us about their experiences and to relive the pain that they had suffered five or 10 years previously. We saw how the pain of those events and of their experiences of the justice system was just below the surface.

As the cabinet secretary has said—I shall not say that more than once—the committee supports the general principles of the bill. We believe that the bill will provide much-needed support and protection for victims and witnesses. Many people in those positions hope never to be in a court, and of course it is an extraordinarily difficult experience for them. However, our stage 1 report highlights, as it should, a number of areas that could be improved to ensure, in particular—I know that this is a difficult issue—that the rights both of the accused and of victims and witnesses are balanced appropriately. Let me highlight some of those issues.

On the definition of victim, like the Faculty of Advocates we are concerned that the innocence of the accused might be compromised. Therefore, we suggested the use of the term “complainer”, which is used in certain sections of the Criminal Procedure (Scotland) Act 1995. The cabinet secretary rejected that in his response, but I think that we still have concerns about the proposal. However, I will leave members to raise that point in the open debate.

On the general principles, there was broad support that certain criminal justice bodies should follow those in their dealings with victims and witnesses, but there was some confusion and concern, which we felt will be shared by the general public, about the provision that gives victims and witnesses a right

“to participate effectively in the investigation and proceedings.”

Victim Support Scotland went so far as to suggest that the provision

“should be struck from the bill”.—[Official Report, Justice Committee, 16 April 2013; c 2596.]

There are concerns that such a right would lead people to have expectations that would never be fulfilled and were never intended to be fulfilled. I note that we will look at a more detailed and practical explanation of how victims and witnesses are expected to be involved in the process.

Communication with victims and witnesses is very important and is not as effective or as co-ordinated as it should be. Victim Support Scotland told the committee that victims have to tell their story around 16 times during the course of reporting a crime through to the trial process. That should not happen. Therefore, the committee believes that individuals working in the criminal justice system should be properly trained to show sensitivity and respect in their communications with victims. Any written information that is provided must be—these are key words—in plain English.

Although continuity in the support that is provided across the system is needed, like the cabinet secretary we do not believe that a compelling case was made for the introduction of case companions or the establishment of a victims commissioner. The issue with case companions is a practical one about how someone could always be available as a case companion to liaise with a witness or a victim. However, we certainly think that there should be continuity in the personnel who keep people informed.

Jenny Marra rose—

I hope that you are not going to challenge me—it is your report.

Photo of Jenny Marra Jenny Marra Labour

I am not going to challenge you, convener. The evidence that we heard from the victims of crime compellingly showed that people do not want to tell their story again and again to different people in the criminal justice system. Does the convener agree that the message from those victims was that they were looking for some point of contact and one go-to person to provide continuity?

The Deputy Presiding Officer:

I remind members to speak through the chair.

Photo of Christine Grahame Christine Grahame Scottish National Party

The report states:

“witnesses asked for continuity in the support provided across the system.”

That is the important part. However, I think that we all agreed that allocating one person was just not practicable.

It has been suggested that there should be an online hub to give victims access to information on their individual cases. That would not be a bad thing, but it should not replace the human touch, because victims and witnesses need a bit of TLC. It is not good enough just to have a hub. Again, the information should be provided in plain English and not in the legal jargon that the lawyers, courts and police understand but which means nothing to civilians who are engaged in the process.

On vulnerable witnesses, there was particular concern that the bill will allow objections to requests for measures to protect child witnesses. We have concerns about the removal of the presumption that child witnesses under the age of 12 should give evidence away from court. That must not have the unintended consequence of children giving evidence in court against their will. We just flag that up as a bit of an orange light.

We appreciate that there might be absolutely justifiable practical reasons why the police could not comply with a witness request to specify the gender of their interviewer, but we suggest that, where that is not possible, a full explanation should be provided to the person concerned and should be included in the report to the procurator fiscal, so that everybody knows why that could not happen.

We see the possible merits of compensation orders, but we feel that the orders could be counterproductive and that it could be distressing for victims to be offered money from an offender, as it were. We therefore suggest that the issue should be dealt with sensitively by ensuring in the first place that the victim wants that to happen.

We have asked the Scottish Government to give further consideration to the merits of the proposal in the bill to introduce restitution orders. We accept that police officers and staff are at disproportionate risk of being assaulted while at work, but we believe that introducing restitution orders for police officers and not for those in other occupations could prove to be divisive. Where would one draw the line? Would we include firefighters, ambulance staff, teachers or shopkeepers? There are difficulties with that, which have already been aired in the press.

Just as participating effectively in a case should not lead to heightened expectations, victims should not have heightened expectations about the level of influence that they can have through any representations that they make to the Parole Board for Scotland. A victim might think that they have more influence than they actually have, which would be unfair and wrong. We therefore recommend the introduction of guidance so that no one misunderstands the position.

I will leave the issue of road death victims to other members, but we hope that we can get something into the bill on that. We recommended a statutory requirement to give people a right to ask for all information relating to a family member’s or loved one’s death in a road traffic accident, although not necessarily a right to receive everything. Other members can develop that.

We support the bill. We have identified a number of recommendations to improve certain provisions with a view to ensuring that the rights of the accused and those of victims and witnesses are balanced appropriately, which is terribly important. I have touched on some of the recommendations and I am sure that other committee members will pick up on some of the aspects of the bill that I have not had time to cover. I look forward to hearing the other speeches.

The Deputy Presiding Officer:

I call Duncan McNeil to speak on behalf of the Health and Sport Committee.

Photo of Duncan McNeil Duncan McNeil Labour

I, too, express my thanks and appreciation for all those who allowed us to do our job in support of the Justice Committee in considering the bill, with a particular focus on the national confidential forum.

It must be said that the process was not without challenges, because people did not see the split in responsibilities. It is worth noting that the justice aspects of the forum posed some difficulties as we took evidence. On one hand, our committee’s focus was clearly on health and wellbeing. On the other, a number of witnesses suggested to us that the absence of accountability itself proved detrimental to the health and wellbeing of some survivors. There was a difficulty in that.

We did not ignore the justice-related issues as we heard and listened to them, but we had to make it clear to the witnesses that we were not considering in depth issues such as the time bar and consultation. We heard, listened to and recorded their evidence on them and we respectfully suggest that, if those matters need to be dealt with, that should be done by the Justice Committee.

Therefore, I will concentrate my remarks on the Health and Sport Committee’s work, with a particular focus on the national confidential forum.

Sorry is the hardest word and even more difficult than saying the word is acting upon it. Nine years ago, Jack McConnell stood where the cabinet secretary is sitting and offered a full apology to adult survivors of childhood abuse. The then First Minister said:

“we in the Parliament, on behalf of the people of Scotland, recognise that they were wronged and that we will do more to support them in the future than we have ever done in the past.”—[Official Report, 1 December 2004; c 12389.]

The national confidential forum will provide a voice to some who, until now, have been denied the right to have their say. One participant in the time to be heard pilot forum told of their experience of abuse in a children’s home in the 1940s. They had to shoulder that burden alone for 70 years. It is unimaginable.

The forum will certainly meet the needs of some people but it will not satisfy everyone. The expectations of the survivor community are high and anyone who has spent time with survivors, as we did in our engagement, can tell members that they place great value on trust. However, their trust is fragile. People have been promised help in the past, only to be let down.

Therefore, we were pleased to hear that the Scottish Government is contributing to the interactive process. There is also activity on the civil litigation time bar and other justice-related issues. I am sure that we all agree that that momentum must be maintained if the interests of all survivors are to be served.

The committee heard evidence at stage 1 from individuals, survivors groups, children’s organisations, care providers, regulators and human rights experts. One witness told us:

“Survivors will judge the process, the bill, the act and the national confidential forum on the personal outcomes for them.”—[Official Report, Health and Sport Committee, 23 April 2013; c 3640.]

For those who choose to participate in the forum, it is crucial—we heard it time and again—that support be provided before they take part so that they know what to expect out of it and what the process will be. An element of support is also needed during and, indeed, after the process because, as we heard, there is a real risk of retraumatisation as a result of it.

Another issue on which we took evidence was the exclusion of those who had been in foster care. We would like that part of the eligibility criteria to be given further consideration. Kathleen Marshall, who was involved in the time to be heard pilot and was formerly Scotland’s Commissioner for Children and Young People, told us that it was an area from which there was most to learn, and learning lessons was something of a theme in what we heard.

The Care Leavers Association said that measures and outcomes were all fine and well, but that

“A life in care and beyond care is much bigger than that ... this debate brings in the emotional side—the love, care and support that are seriously lacking in our current care system”.—[Official Report, Health and Sport Committee, 23 April 2013; c 3659.]

How the work of the national confidential forum will inform in practice that care system now and in the future is not entirely clear from the bill. The centre for excellence for looked after children in Scotland asked for more detail; perhaps the minister will be able to elaborate later. The Church of Scotland raised the point about exploring links between the forum and the care providers, and we took other evidence on that, so I hope that that point is taken up.

We acknowledge the wider approach that is being taken by the Scottish Government via its survivors strategy. We recognise that access to counselling, support, mental health services and advocacy is crucial. From the evidence that we took, we saw the need for a choice of accessible services, long-term support and a skilled mental health workforce. The Health and Sport Committee welcomes the therapeutic value that the national confidential forum will bring. We recall that apology from the First Minister in 2004 and pledge to do more to help those who were abused as children in the care of the state. There is a moral imperative here. A tailored choice of therapeutic supports and other remedies should be available to survivors.

The Deputy Presiding Officer:

Mr McNeil, you must conclude.

Photo of Duncan McNeil Duncan McNeil Labour

Whether we call it a person-centred approach or the right thing to do, or say that it is not before time, action is necessary. We support the bill at stage 1.

Photo of Jenny Marra Jenny Marra Labour

Labour is happy to support the Government’s motion and the general principles of the Victims and Witnesses (Scotland) Bill.

Earlier this year, at the Scottish Labour Party conference in Inverness, we were privileged to hear about Helen Richardson’s journey through the Scottish justice system as an immediate family member of a victim of crime. In 2010, Helen’s sister was murdered in her Angus home, which turned the lives of Helen and her family upside down.

During her powerful speech at the conference, Helen Richardson detailed her frustration as she moved through disjointed, confusing and protracted processes in the justice system at a time of great anxiety and grief. We cannot escape the need for people such as Helen to assist in the disposal of justice but, while recognising her duty to the justice system, we must also recognise our responsibility to provide victims and witnesses with the knowledge and support that they need.

We agree with the underpinning principles of the bill, but it does not go far enough in practice to offer the required level of support. For example, let us look at the measures to supply more information to victims and witnesses.

The bill seeks to improve the flow of information to victims and witnesses by placing a duty on the procurator fiscal, the Scottish Court Service and Police Scotland to disclose case-specific information. We acknowledge that those measures will make more information available, but the Crown Office has made it clear that information will be useful only if the victim or witness who receives it can understand it. Furthermore, changes such as those relating to victim statements in court or to victim and witness representations to the Parole Board will, while giving greater flexibility, inevitably demand more answers and decisions from victims and witnesses.

For that reason, Scottish Labour’s proposal for case companions is compelling. As a single point of contact, a case companion would be assigned to a victim or witness from the moment when they were identified and for as long as their interaction with the justice system lasted. They would be a central point of information and guidance, whether they were appointed as a third-party provider or internally in the justice system.

We believe that the provision of case companions would best embody the letter and spirit of the European Union directive that has brought us to the chamber today. That legislation states:

Member States should consider developing ‘sole points of access’ or ‘one-stop shops’, that address victims’ multiple needs when involved in criminal proceedings, including the need to receive information, assistance, support, protection and compensation.”

Photo of Christine Grahame Christine Grahame Scottish National Party

I simply want Jenny Marra to confirm her position, because she signed up to the words:

“On balance, the Committee does not believe that a compelling case has been made in support of the introduction of case companions”.

What has changed for her?

Photo of Jenny Marra Jenny Marra Labour

Committee reports are always agreed by the committee, but Scottish Labour thinks that there is a compelling case for case companions.

Just as the Government is legislating to expand the choices and information given to victims and witnesses, so is it legislating to expand the need for guidance and support on making those choices. To make his changes as meaningful as possible, I hope that the cabinet secretary thinks again about our call for case companions.

One area of concern that we have is about the bill’s monitoring and reporting procedures.

Photo of John Finnie John Finnie Independent

Given the member’s strength of feeling on case companions, did she think about whether it would have been appropriate to have a minority entry put in the Justice Committee’s report? The position that the committee’s convener outlined is entirely accurate.

Photo of Jenny Marra Jenny Marra Labour

As I said in response to the convener, committee reports are always agreed by the committee, and I think that we made our point in committee that we think that case companions are a good idea. Stewart Maxwell is shaking his head, but he was not there to hear the discussions.

Photo of Jenny Marra Jenny Marra Labour


As I said, one area of concern that we have is about the bill’s monitoring and reporting procedures. Our concerns were raised during the committee’s evidence sessions and are reflected in the committee’s report. Scottish Labour believes that the best way to achieve effective performance monitoring is through a fully independent victims commissioner, to which the cabinet secretary alluded in his opening speech. Creating such a role would ensure transparent, independent and focused oversight of a complex system.

The Deputy Presiding Officer:

The member is not giving way. [Interruption.] Can we have order, please?

Photo of Jenny Marra Jenny Marra Labour

I clarify that I am speaking from the Labour Party’s position and that I am not speaking on behalf of the committee. [Interruption.]

Photo of Jenny Marra Jenny Marra Labour

Creating an independent victims commissioner role would ensure transparent, independent and focused oversight of a complex system.

Photo of Gil Paterson Gil Paterson Scottish National Party

Is this a Labour pamphlet that we are hearing?

The Deputy Presiding Officer:

Mr Paterson, can we please have order in the chamber to hear Jenny Marra?

Photo of Jenny Marra Jenny Marra Labour

Creating a role such as a victims commissioner would ensure transparent, independent and focused oversight of a complex system. It would do so exclusively through the eyes of victims and witnesses and would lend a powerful voice to their cause.

When my colleague Dave Stewart consulted on the proposal in 2009, it gained a favourable 77 per cent in support from organisations, including Victim Support Scotland, which said:

“We look forward to seeing the development of the new office and hope it will play an active, tangible role in the protection and promotion of victims’ rights in Scotland.”

I hope that our call for a victims commissioner is considered more fully by the Government as the bill moves forward.

An important provision that I believe is missing from the bill and which Rape Crisis Scotland highlighted is the right of complainers of sexual offences to access legal advice when the defence requests records in relation to their sexual history, character or medical history. Currently, complainers have no right to participate actively in that process or to challenge any application. Victims are reluctant to come forward because they do not want their personal lives to be subject to intense scrutiny against their will. I would therefore appreciate the minister commenting on Rape Crisis Scotland’s suggestion of affording complainers of sexual offences legal representation when the defence requests to raise matters of their sexual history, medical records or character.

We have concerns, as the convener said, about the use of the word “victim” throughout the bill and its impact on the presumption of innocence, which is a cornerstone of our legal system. Similarly, the provision for victims to participate effectively in an investigation and proceedings remains ambiguous at best. Murdo MacLeod, Queen’s counsel, stated in his evidence that he could

“only imagine that it means that people can effectively participate in terms of giving evidence ... Beyond that, I have no idea what the provision means.”—[Official Report, Justice Committee, 23 April 2013; c 2653.]

I think that the Government has yet to address the concerns of the committee that the provision might falsely raise the expectations of victims.

We sympathise with the idea of a victim surcharge, but it is vital that it does not become a substitute for properly funded victim services. [Interruption.]

The Deputy Presiding Officer:

Order. There are conversations taking place in the chamber when the member is trying to make her speech.

Photo of Jenny Marra Jenny Marra Labour

We would therefore appreciate assurances that it is feasible to collect the money and that the money will not simply be used to plug holes in a decreasing justice budget.

The bill gives us an opportunity to make a difference to the lives of victims and witnesses of crime. However, we believe that the Government should do more to clarify the points that I have raised and should provide greater support and better oversight for victims and the organisations that support them. Although we agree with the principles, there is still more work that can be done. I look forward to working with the Government at stages 2 and 3 to address those issues.

Photo of John Lamont John Lamont Conservative

I welcome the opportunity to speak in the debate. The Justice Committee has spent a lot of time considering the bill and gathering the views of all those who are involved in the justice system. As the committee’s convener said, we also took evidence in private from witnesses, who recounted their experiences.

There is a consensus that more needs to be done for victims of crime and that more can be done to ensure that victims are put in their rightful place, which must be at the heart of the justice system. I therefore welcome the bill, which the Scottish Conservatives will support at stage 1.

The bill will go a fair way towards helping those who are unlucky enough to be affected by crime. Some of the most useful measures include the introduction of a victim surcharge, which will mean that offenders contribute to supporting those who are affected by crime; the creation of a right for victims and witnesses to access certain information about their case; the widening of the application of special measures that are available to witnesses who are deemed to be vulnerable; the right to choose the gender of an interviewer in sexual offence and domestic abuse cases; and the creation of police restitution orders to help support officers who are injured in the line of duty.

The Scottish Government is to be commended for introducing a bill that is dedicated to victims and witnesses; that has not happened in Scotland before. The committee considered a number of suggestions for improving the bill, which I hope that the Government will reflect on. Perhaps most significantly, we heard from a number of witnesses that, although it confers rights on victims, the bill does not define the term “victim”. That appears to be a glaring omission, and I hope that the Government can come up with a definition that will provide clarity while protecting the right to a fair trial.

The bill extends the entitlement to special measures that are available to victims who are deemed vulnerable. Those are important measures that can make it easier for witnesses to give evidence. However, the bill also introduces a right for parties to object to the use of standard special measures in all cases. Lawyers welcomed that, but it was of great concern to Victim Support Scotland and the children’s commissioner, because it introduced uncertainty for vulnerable witnesses about whether the support that is offered to them will be challenged and possibly withdrawn. To seek a solution that is accepted by victims and prosecutors must be one of the priorities as the bill progresses.

We heard concerns about section 3(4), which allows the police, the Scottish Court Service and the Crown to withhold information that victims request if they consider it inappropriate to release that information. The Government should consider whether that needs amending or, at the very least, provide clear guidance on what factors should be taken into account when considering the appropriateness of disclosing information.

More generally, the committee heard that communication between justice bodies is poor and that that is causing problems. Astonishingly, David McKenna of Victim Support Scotland suggested that victims have to tell their story about 16 times to various agencies, which is clearly unnecessary and can add to victims’ distress.

Some of the evidence that was received painted a less than enthusiastic picture of the bill. It is worth pointing out that the bill will bring Scotland up only to the minimum standards that are required by the EU directive on victims and witnesses. In some respects, it is arguable that the bill falls short of that minimum standard. For example, it does not establish a formal right to review a decision not to prosecute.

Peter Morris, a campaigner for victims’ rights, expressed his disappointment with the bill in his submission. He wrote:

“To say that this legislation as it stands will make any significant difference to victims’ lives is just not true. To say that this legislation is radical is not true and to say that this now puts victims at the heart of the justice system is also not true.”

The Scottish Conservatives’ priority is to strengthen the bill so that it does more and goes further towards improving the lot of victims and witnesses. For example, the victim surcharge should apply to all offenders, so that we do not have a situation in which motorists must contribute but violent offenders do not do so.

Ten days ago, the Sunday Post reported that sex offenders who had been placed on the register for life but who now have the right to challenge that are being taken off the register without their victims being informed. The bill will give victims of life prisoners the right to be notified when the offender is released; the same right should be granted to the victims of sex offenders who were put on the register for life but have been taken off the register.

The bill can be criticised for being modest. Moreover, there is an elephant in the room. Even if the victim is better and more swiftly informed about the process, and even if they are given more support throughout and can have a more meaningful role before a conviction is secured, that is cold comfort for the victim if the sentence that is served is nothing like the sentence that was imposed.

Automatic early release of prisoners, which the Scottish National Party promised in 2007 to abolish, is a scandal. It does the victim a disservice, it discredits the system and it destroys public confidence. The Scottish Government’s claim that it wants to stand up for victims would be more credible if it did not continue to allow the vast majority of offenders to be released from prison after serving only half their sentences.

I accept that it was a United Kingdom Government that introduced automatic early release. However, that Government quickly realised the error of the approach and left provision for its repeal on the statute books in 1997. That was ignored by the incoming UK Labour Government, just as numerous calls from the Scottish Conservatives to end automatic early release have been ignored by the SNP Scottish Government.

Where was the consideration of victims when the Scottish Government and SNP members of the Justice Committee pushed through the closure of a fifth of our sheriff courts? The closures might save the Scottish Court Service money, but they will pass on costs to victims and witnesses and create yet more delays and a clogged-up justice system.

The Deputy Presiding Officer:

I am afraid that John Lamont must conclude.

Photo of John Lamont John Lamont Conservative

The bill is a welcome step forward, but the Scottish Government should not forget that some of its other actions in relation to our justice system will impact on the victims of crime.

The Deputy Presiding Officer:

Members might have guessed that we are very tight for time. We move to the open debate, with speeches of a maximum of six minutes.

Photo of Sandra White Sandra White Scottish National Party

I am a bit confused about what Jenny Marra said. I wonder whether what she and Labour members say in the Justice Committee does not represent the Labour Party’s position. I say to her that she could have recorded her dissent if she felt strongly about the matter. I wanted to make that point—[Interruption.]

The Deputy Presiding Officer:

Order. Members must speak through the chair, please.

Photo of Sandra White Sandra White Scottish National Party

Thank you, Presiding Officer.

I thank the many individuals and organisations that responded to the consultation, and I thank the committee clerks for their support. I also thank the Health and Sport Committee for its work. I am a member of the Justice Committee, so I did not take part in the Health and Sport Committee’s investigations, but I was involved with the petition that was lodged when I was a member of the Public Petitions Committee. I am pleased that things have moved so far, and I congratulate Duncan McNeil on his speech, which I must say was wonderful.

The bill aims to improve support for victims and witnesses as they encounter and move through the criminal justice system. That is to be welcomed. As the Justice Committee said on page 5 of its report, under the heading “Background to the Bill”, improvements in support have been happening

“against the backdrop of a growing public perception that the balance of rights is tipping in favour of the accused.”

That is why we need the bill and why it is so important that we talk about victims and witnesses.

Many people might think that the perception is not correct, but the evidence that we received certainly suggested that the public and witnesses need to be made more aware of court proceedings, enabled to have more involvement with key stakeholders and given access to information, support and protection. Above all, people need to be treated with respect. Many people who gave evidence felt that they did not receive such a service from the justice system.

The bill covers many areas, but I will concentrate on a couple of issues, because time is short. Much has been made of the definition of “victim”. Everyone who has spoken in the debate has used that word, and I remember that at one of our many committee meetings—I am sure that other members of the committee remember it, too—a lot of time was taken up debating the term and whether we should talk about a victim or a complainer.

I can only repeat what I said at the committee. If a crime is committed against me, I am a victim and not a complainer. I note—Jenny Marra raised this when I asked a question—that the Criminal Procedure (Scotland) Act 1995 uses the word “complainer”. However, most members of the public are not lawyers and, if a crime is committed against them, they are victims. That is why the bill is called the Victims and Witnesses (Scotland) Bill. I draw members’ attention to that. I am pleased that the committee’s recommendation recognises that, and I take on board the cabinet secretary’s comments and the clarity in that area.

Most people know that it is not just the victims of crime who are affected but their families and loved ones. I know that my colleague Willie Coffey will highlight that again. I have made the point about using the word “victim” rather than “complainer” more than once because, as I said, we discussed it for a long time—probably longer than any other aspect of the bill—and, given the time that that took, I am concerned about how long it would take to discuss a definition to be put in the bill.

I welcome the measures—particularly live television links and the use of screens and supporters—that are being taken to protect vulnerable witnesses and encourage them to take part in court procedures. I particularly welcome the inclusion of victims of sexual offences, domestic abuse, human trafficking and stalking, which will ensure that they are automatically entitled to use standard special measures when giving evidence. I ask the cabinet secretary whether he is minded to extend the powers in the bill—or will consider doing that—to include further measures to protect victims of human trafficking and particularly children who have been trafficked.

Jenny Marra and others have mentioned the letter from the victims organisation collaboration forum Scotland and Scotland’s Commissioner for Children and Young People, their objection to the provision that both parties have the right to object to special measures being used when evidence is given and their call for the removal of sections 9 and 13. I take on board what they say, but I believe that a balance has to be struck. Vulnerable witnesses should be and will be identified early and, if special measures are needed, they should and will be explained to witnesses as early as possible. I welcome the cabinet secretary’s comments on that issue in his speech.

I look forward to processing the bill through the Parliament. It has many good provisions. We have heard about them and we will hear more later. We will also hear concerns that other members raise. That is how it should be in debates, particularly at stage 1. The bill’s overall principle is to ensure that victims and witnesses receive support and feel able to participate in the justice system. The bill will give them that opportunity and enable them to do so.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

I agree with the principles and much else in the bill, but I will concentrate on areas in which it could have gone further. The standards that section 2 mentions are a case in point. They need to be consulted on with victims organisations and others, they need to be in regulations and they should be reported on.

More than that, however, the standards and other aspects of the bill raise, for me, a fundamental question. How will they be policed? Who will ensure that they are enforced? In some countries, victims can go to court if they feel that their rights have been abused, but what recourse will there be for victims in Scotland? That fundamental question led to the proposal from the Labour Party for a victims commissioner.

Now, we can argue about that commissioner’s remit. I agree with what Jenny Marra said about a commissioner achieving effective performance monitoring. I would like the commissioner to take on some of an ombudsman’s role so that, if somebody had an example of where they had not been treated properly by the system, they could go to the commissioner to get recourse. It is up to those who oppose having a commissioner to say how they would answer the fundamental question about how the legislation will be policed and who will ensure that it is enforced.

Photo of Christine Grahame Christine Grahame Scottish National Party

Like me, the member has been in the Parliament for a very long time. He can see why we are a bit taken aback—I think that I speak for the rest of the committee—to find out now that the position of Labour members is that they want a victims commissioner and case companions. That was not dealt with at committee. The objection could have been put in our report, but it was not. The position as I understood it when I stood up to speak for the committee was that the committee was unanimously opposed—at this point, on balance—to having a victims commissioner and case companions. The member knows the process.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

I object to such a long intervention. I would not have given way had I known how long it would be. Christine Grahame makes a procedural point; it is not a substantive point. I will give one small example and waste more of the time for my speech. I did not vote at the Finance Committee against the recommendation in that committee’s report that there should not be energy efficiency measures in the Land and Buildings Transaction Tax (Scotland) Bill, but I took a different position when I lodged an amendment to that bill. It is perfectly possible for a member to take at a subsequent stage a position that they have not pushed to a vote in committee. I have now wasted a minute of my speech, which I bitterly regret.

I agree with the proposal that there should be more information for victims and witnesses, but I note that section 3 does not mention information about bail and bail conditions, which is often complained about. The best way to provide that information is through a single point of contact, which would provide continuity of support as far as possible. That will not always be possible, but the principle of a case companion is absolutely right.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

I will not give way again. I am sorry, but I have already lost a minute because of the previous intervention.

More information for victims and witnesses is good for them, but publicly available information about victims and witnesses is not good. I note what Victim Support Scotland said about having some control over how the media report on victims and witnesses—that is hard to have.

I should mention something that I mentioned in a debate last June—the case of my constituent whose personal details were all published on the Scottish Court Service website following a divorce case. That problem is on-going. I have had two meetings with the Information Commissioner’s Office assistant information commissioner—the Scottish data protection commissioner—about it and I am still awaiting a further reply from the SCS.

It has emerged that the judiciary is not subject to the Data Protection Act 1998. The sheriff allowed intimate details to go on the website, including bank details. It seems that, although the principle of judicial independence is good in practice, it sometimes goes too far. The publication of a court judgment on the website made my constituent a victim; apart from anything else, she was stalked as a result of it.

I have to be very quick now, because I have only two minutes left. I welcome the extension of special measures for victims of sexual offences and domestic abuse, but I note that Victim Support Scotland said that its greatest concern about the bill was about the right of parties to object to the use of special measures. That right is not in place now, which led to my intervention about whether the ECHR was being invoked against the existing legislation. The children’s commissioner clearly says that the existing legislation is not against the ECHR, and Scottish Women’s Aid and Rape Crisis Scotland say the same.

Scottish Women’s Aid and Rape Crisis Scotland have made many points about the bill. I do not have time to go over them all, but they are certainly issues on which I would like questions to be asked at stages 2 and 3. They include the complainer’s right to access legal advice when the defence requests records that relate to sexual history, character or medical history; the right to request a review if there is no prosecution proceeding—remember that only 25 per cent of rape complaints are carried forward; the extension of special measures to civil cases, which is often where domestic abuse and other sexual offences are addressed; the right to choose the gender of a forensic examiner; and the amendment of section 20 to make it clear that there should not be a compensation order when that is contrary to the victim’s wishes. I support all those concerns from Scottish Women’s Aid and Rape Crisis Scotland.

Now I have 40 seconds for the national confidential forum. I note and agree with what Duncan McNeil said. There are many positive features of the forum, but it should include those who have been in foster care. Many of the witnesses said that. It should also have a wider mandate and remit. I noticed that paragraph 95 of the Health and Sport Committee’s report said that the Scottish Human Rights Commission

“could not identify another initiative in the world that dealt only with acknowledgement and no other elements of remedy, whether inquiry-related, civil-law focused or reparation-based.”

I note the Health and Sport Committee’s concern about the extent of knowledge and expertise of mental health professionals in this area. That reminds me of a report by Sarah Nelson, which I launched probably 12 years ago, that said exactly the same thing. At that point, it was psychiatrists who had no awareness of sexual abuse issues. I hope that that has changed in the interim, but the Health and Sport Committee’s report suggests that perhaps it has not changed as much as we would like it to.

Photo of Colin Keir Colin Keir Scottish National Party

The bill has been one of the most interesting pieces of legislation that I have worked on in my time on the Justice Committee, and I believe that many of my colleagues feel the same. The submissions that have been provided by individuals and groups have shown the real experiences of real people affected by crime on their journey through the justice system, not necessarily as the direct victims of crime but as victims who have lost loved ones as a result of crime and negligence.

As Christine Grahame mentioned, perhaps the most informative session that the Justice Committee held was the round-table event that was held in private, which victims of crime attended to give their stories and experiences of and comments about the justice system. Some of what we heard was quite harrowing, and I felt that some negative experiences could have been avoided merely by the authorities’ using a degree of common sense. It was difficult not to leave such a session demanding wholesale change, such was the effect of some of those traumatic stories. However, justice must be balanced, and I hope that the committee’s stage 1 report strikes a good balance as a starting point in identifying necessary reforms to the way in which we deal with victims and witnesses in the Scottish justice system.

As the cabinet secretary mentioned and as Malcolm Chisholm highlighted, it is only reasonable for those who enter the justice system to expect care and service of such a standard that a very difficult situation is not made even more traumatic. As we have heard, many victims and witnesses felt that every time that they moved further down the justice system chain, they had to describe and relive their experiences for a different official. I believe that that problem can be avoided, but like the majority of my colleagues on the Justice Committee I am not minded to support the idea of a case companion.

Like others, I want to ensure that the victim has the right to be questioned by someone of the same gender—a particularly obvious request in serious sexual assault cases. However, I take on board the fact that, due to other factors in the police service, such as shift patterns and court work, that may be difficult to achieve at all times. I am content with the assurances that have been given by Police Scotland that every attempt will be made to ensure that investigation officers of the same gender as the victim are made available when required.

Another difficulty is the definition of vulnerable witness. Only as the difficulties of keeping a truly balanced justice system were highlighted, after hearing from the likes of the children’s commissioner, Children 1st and others, did the rather settled view that I started this legislative journey with change slightly. I totally agree that, if possible, we must ensure that vulnerable witnesses—certainly, victims under 12—are given the opportunity to give their testimony away from court. Along with other special measures, that will ease the intimidation that is felt prior to and during court proceedings, especially if the victim or witness is a child, and it will improve the quality of that person’s testimony while protecting them from the full force of our adversarial system. That can only be good.

Nevertheless, there are certain individuals aged under 18 who have seen the justice system at first hand over a number of years and are extremely tough nuts to crack. Should those people, in the interests of justice, not be allowed to face interrogation in court because of their age? That is something for discussion. I am of the belief that there is a case for challenging the granting of special measures in some cases. I am not convinced that a one-size-fits-all approach is correct. However, caution is called for and, as the stage 1 report points out, clarity is required

“as to where responsibility lies in relation to establishing the vulnerability of ... witnesses”.

During the committee’s deliberations, I had personal difficulty with the issue of the relatives of victims of road traffic accidents obtaining, as a matter of right, all information relating to the investigation of the fatality. I fully understand the wishes of relatives to obtain information relating to the loss of a loved one, as I went through the same heartache when my brother Lindsay was killed in a motorcycle accident just over four years ago. Of course, the relatives want to know what happened—there needs to be closure. In my experience, Strathclyde Police dealt with the problem in an exemplary manner. They showed me the crash scene and went through the details of what happened, as seen by witnesses and taking into consideration the road conditions. On a personal level, I am unclear about why more detail is required. My problem with full disclosure as a right is that the description and, in particular, the photographs of the accident may be gruesome and rather harrowing in nature.

If the cabinet secretary is minded to support the right to full disclosure, I ask that he ensures that the systems are in place to explain to relatives what is in the documents, and that that is done sensitively. I suggest that raw data should not just be handed over as a matter of course.

The Deputy Presiding Officer:

The member is concluding.

Photo of Colin Keir Colin Keir Scottish National Party

Many issues in the bill are worthy of discussion—members have raised some fascinating issues. The bill is vital. I hope that we can maintain cross-party solidarity. I will most certainly support the bill at stage 1.

Photo of Alison McInnes Alison McInnes Liberal Democrat

I, too, take a moment to thank the many people and organisations that took the time to respond to the committee’s call for evidence on the bill.

The Scottish Liberal Democrats welcome the Victims and Witnesses (Scotland) Bill and support its general principles. It is right that we seek to protect and enhance the rights of witnesses to and victims of crime. Crime is a story of people whose lives have been adversely affected through the actions of others. It is vital that, when working on justice reforms, we remember that and all do what we can to provide support and protection for those who are affected by crime.

Although we are fortunate in Scotland to have access to well-developed voluntary services, much more is still to be done. It is vital that our laws offer the best possible protection to victims and witnesses so that support organisations are at their most effective.

I will focus briefly on a couple of the bill’s key points, before touching on a few matters that it does not yet cover.

Quite rightly, much of the focus has been on the proposed improvements for vulnerable witnesses. I welcome in particular the right to an individual assessment for all vulnerable witnesses to determine the most appropriate special measures to assist them. The widening of eligibility for those special measures is also welcome.

We must acknowledge that there is dismay among victims and those who speak for them about the proposals to allow objections to special measures. In particular, the VOCFS—the victims organisations collaboration forum Scotland—and the Commissioner for Children and Young People have challenged us to look again at the matter.

The VOCFS argues cogently that that approach will not only create uncertainty for witnesses but, in the case of children—who currently have an automatic entitlement to special measures—lead to a dilution of their current protection. The VOCFS argues that it is illogical to extend eligibility for special measures on the one hand while allowing the granting of special measures to be challenged on the other. The VOCFS goes so far as to say:

“If implemented, this provision will result in an increase in the number of witnesses re-victimised by the process of going to court ... we consider that it will undermine all the other provisions and rights contained the Bill.”

I listened to what the cabinet secretary said in his opening speech about engaging further on the matter. I urge him to give careful consideration to amending the bill in light of such strong representations. At the very least, children’s rights must be protected and not eroded in any way. I am keen for the committee to take further evidence on sections 9 and 13 of the bill at stage 2, if necessary.

The other area that has attracted a lot of attention is the so-called victim surcharge. In the debate during the consultation on the bill last year, I mentioned the Liberal Democrats’ slight unease with the plan. Our long-term vision is to increase the amount of paid work that takes place in prisons. As part of that, we could develop a means of taking a contribution from prisoners’ wages, which would be used to provide additional funding for victim support measures. That would re-emphasise the need for all offenders to make reparations over the course of their sentence.

I now turn to matters that are not in the bill. At committee, there was discussion—as there has been this afternoon—of the creation of a victims commissioner and the introduction of case companions. I understand why those could appear to be positive measures, but they each have practical problems.

Commenting on a possible victims commissioner, Louise Johnson of Scottish Women’s Aid said:

“we already have very good links with the Scottish Government, and we have direct links to people at very senior levels in the Crown Office and the police ... We do not think that another body’s intervention would help us at all. Why should we have to go through an intermediary?” —[Official Report, Justice Committee, 16 April 2013; c 2617.]

I agree.

Similarly, while on the face of it case companions might offer a reassuring presence, they could in practice cause significant problems with information flow.

There are a couple of suggestions that I believe are worthy of further exploration at stage 2. The first of those relates to anonymity orders, which were mentioned in the consultation but did not make it into the bill. It is thought that, because such orders are in use in England and Wales, certain issues may arise with cross-border cases. I would be grateful to hear the cabinet secretary’s view on the issue; perhaps it is something that we can return to.

I want also to mention the brief discussions that we had in committee—which are mentioned in the report—on a right for victims to a review of a Crown Office decision not to proceed with prosecuting a case. Members will be aware that the Director of Public Prosecutions in England and Wales recently announced a consultation on plans that would enhance the right to appeal against Crown Prosecution Service decisions not to prosecute.

As a result of an EU directive, it is incumbent on us to ensure that victims have the right to have a decision reviewed. I acknowledge the Crown Office’s view that its current arrangements are compliant with the directive; I also acknowledge that the Crown Agent has commissioned a review to consider whether the arrangements in Scotland can be further enhanced. I do not wish to pre-empt the outcome of that review, given the importance of the right and the context of the bill, but I am minded to agree with Victim Support Scotland that there is a strong case for us to include on the face of the bill a right to a review of a decision not to prosecute. It is an issue that I hope that we can return to and one on which I would welcome further thoughts from the cabinet secretary.

Photo of Christian Allard Christian Allard Scottish National Party

First, I acknowledge the excellent contributions that have been made in the debate so far. I also congratulate all the members of the Justice Committee on their stage 1 report on the Victims and Witnesses (Scotland) Bill. Unfortunately, I withdraw my congratulations for one particular member. As a new member of the Parliament, I am quite astonished that a member for North East Scotland has done so much to undermine a committee of the Parliament. When I started in committees, I was told that if I signed up to a report, that meant that I agreed with it, and I would never come to the chamber to deny what I had said in committee.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

I have been a member of this Parliament for 14 years and of another Parliament for seven years before that. I did exactly what Jenny Marra did on the Land and Buildings Transaction Tax (Scotland) Bill—I let something go through on energy efficiency and then I moved an amendment. There are perfectly good reasons for doing that, and I think that it is totally unacceptable that there has been a concerted attempt by SNP members to attack Jenny Marra on the issue.

Photo of Christian Allard Christian Allard Scottish National Party

If she had had a perfectly good reason for doing what she did, I am sure that Ms Marra would have told us so.

There is a lot in the bill on which we can all agree, such as the bill’s general principle of ensuring that the legal system in Scotland pays better regard to victims and witnesses, particularly in the help and support that is given to them during and after the investigation or proceedings.

The bill’s aim is to improve the experience of victims and witnesses and to make justice work for them. Over the past few weeks, the Presiding Officer may have heard me say several times that I was not born in Scotland, and I have to confess that English was not my favourite subject at school. Perhaps more than others in the chamber, I understand that plain English should be used when informing and supporting victims and witnesses. It is an appropriate language that most of us can read and understand, regardless of where we live or come from.

I note that Tam Baillie, Scotland’s Commissioner for Children and Young People, agrees with the principle of the need for good communication with victims and witnesses. When he gave evidence to the Justice Committee, he put on record his general support for the bill. We need to ensure not only that children and young people are heard, but that we communicate in a way that they can understand.

Incidentally, the word “victims” is the right choice of word for the bill. Families of victims are very sensitive to the language that we use. They are a highly vulnerable group. Children of victims, in particular, might need help and support for many years. Losing a parent at an early age or losing a child as a parent is a very traumatic event, whatever the circumstances.

Given that recorded crime in Scotland is at its lowest level for 39 years and that the number attempted murders and serious assaults has gone down by 50 per cent since June 2007, I believe that it is important that the Scottish Government reflects on the need to support the families of people who are killed on our roads. My experience is that families want an explanation of what happened, particularly if they know or are related to the person who was responsible for the road fatality.

I happen to live in the relatively new and prosperous town of Westhill in Aberdeenshire. Young families settled there two or three decades ago and so there is a disproportionate number of younger people there. Over the past 20 years, I have often attended the funerals of young people, many of whom—too many—were victims of accidents on our north-east roads. I know that when criminal proceedings are on-going it is difficult to address the needs of the families of those who have been killed on our roads and to ensure that they have the information that they require, and I understand why some bereaved families might not wish to receive some of the material from the investigation. However, the issue was raised when the Justice Committee took evidence from families of road death victims, and I ask the cabinet secretary to explore ways of increasing the amount of information that is given to the families of such victims.

Photo of Christian Allard Christian Allard Scottish National Party


I seek reassurance that the bill can allow for a statutory requirement to give bereaved families information—which they may or may not request—at the end of criminal proceedings. Again, as with the use of appropriate language, I believe that giving bereaved families the right to obtain copies of the investigation papers relating to fatal road deaths is good practice and the right thing to do.

I congratulate all the organisations and individuals who work hard to make our roads safer. This weekend’s Royal Highland Show will attract many visitors from our rural communities, and I urge them to stop at the road safety village in the show’s lifestyle area. Our country roads account for around 70 per cent of all road fatalities in Scotland and as a member who represents many rural communities in the north-east I will be attending the greatest show on earth to listen to expert advice and information on road safety.

Photo of John Scott John Scott Conservative

You should be drawing to a close, Mr Allard.

Photo of Christian Allard Christian Allard Scottish National Party

I am delighted that the Justice Committee supports the bill’s general principles and look forward to hearing the cabinet secretary’s response. I, too, believe that the bill will help to improve the experiences of victims and witnesses of the criminal justice system in the future.

Photo of Gil Paterson Gil Paterson Scottish National Party

It is just my luck to follow a Frenchman who speaks English better than I do. I declare that I am a board member of Central Scotland Rape Crisis & Sexual Abuse Centre.

The issue of men’s violence against women and children is always dealt with seriously by the Parliament. Although the focus of this debate and the stage 1 report is not exclusively on victims of men’s violence against women and children, most of my speech will consider how the debate relates to that issue and how the bill might offer some support to victims. After all, much of what is in the report will go some way towards assisting those who fall into that category.

It is crucial that when a woman or a child is raped, services are available in an instant. I know that Rape Crisis is at the sharp end of such matters and although it can and does deliver vital early assistance, it also knows the importance of good reliable evidence in rape cases and will signpost victims towards medical examinations as soon as possible. Rape Crisis, Scottish Women’s Aid and many other third sector organisations that deal with women and children are well aware that the trauma of the medical examination is that bit more difficult to deal with if it is carried out by a male doctor, particularly if the crime has been of a sexually violent nature.

The last thing I want to do is to call into question the professional capabilities of male doctors. I have the highest regard for the men who work in this very difficult field, but I believe that even they, when they begin work in the area, are reluctant participants. Of course, they find things much easier as they gather experience. On the other hand, for victims, no matter whether they are women or children, the presence of a female doctor makes an important experience less traumatic, is just that little bit more reassuring and is one less thing to worry about. As I have said, although the experience will be traumatic for the female or child victim, it is vital for the purposes of getting good, safe forensic evidence purposes. Therefore, I encourage the Scottish Government to consider the matter carefully and to seriously consider finding ways to provide more female doctors for the service at what is a vital and traumatic time for victims.

There is then the issue of victims and relatives attending court only to be confronted by the accused—worse still, by an abuser—when the court sits for sentencing. I know that some of our courts do not easily lend themselves to separation of the accused and the accuser, but that is one of the most negative experiences that victims and their loved ones complain about. Such a scenario has a massive psychological impact on the victim, their family and friends. For that reason, I ask the Scottish Government again to look carefully at that sensitive subject with a view to finding ways to keep the parties apart as much as is humanly possible. I am sure that keeping them apart from the accused before the court sits would be of great assistance to victims and would offer them protection from any possible further intimidation.

Children are the most difficult to accommodate at trials. By its very nature, a court is a grown-up establishment, and it is difficult—if not impossible—to soften its edges to accommodate children, let alone having courts that are entirely suited to children. At best, vulnerable children see courts as unwelcoming places; at worst, they see them as somewhat frightening places. We need to build on the good work that is already in place to make courts and the system more sympathetic to children. Fully training those who deal with children and their needs, and who navigate for them a pathway through court proceedings, is therefore of practical benefit to children. I would be pleased if all those who deal with children were trained to the highest level—particularly those involved in the interview stages both before and during court hearings. If things are made as normal as possible for vulnerable children, they can give good evidence. That is a must—it must be a top priority for the end result. It would benefit not only the child and their family but those who are engaged at that high level. It would benefit the court process in both the short term and the long term because the safest possible conclusions on guilt or innocence would be reached.

I hope that the Government can take positive steps on the matters that I have raised to ensure that victims are protected not only in the justice system but in their daily lives.

Many thanks, Presiding Officer, for allowing me to make a contribution on this very important matter.

Photo of Graeme Pearson Graeme Pearson Labour

Many members will be pleased that my voice is on the verge of collapsing, but I hope that I will maintain it for six minutes.

The cabinet secretary introduced the debate by indicating that the bill seeks to place

“victims and witnesses at the centre of the criminal justice system.”

The evidence that the Justice Committee received from victims and witnesses was harrowing in identifying that, for many of them, their experience reflected almost a pass-the-parcel attitude to dealing with the problems that they faced and the challenges that they saw in obtaining necessary information.

A picture emerged that reflected a justice system that is focused on solving administrative challenges, but a real question remained about whether victims’ and witnesses’ needs are being properly answered. There was also a challenge in respect of an absence of monitoring the standards that are expected and the services that are delivered. Questions are therefore pending, and they require answers. One hopes that, at the end of our debate, the minister will be able to give us some comfort in supplying those answers.

Is the Government confident that the various services have the ability to update the system accurately and in a timely fashion so that victims and witnesses can access that knowledge? Certainly as far as the police service was concerned in its evidence to the committee, the answer is no. It has neither the systems nor the support necessary to be properly aware of the current situation with regard to the cases that it deals with—likewise, I doubt that many others in the system are able to do that either.

From the point of view of a witness or a victim, they face not only the police but family liaison officers, Victim Support Scotland, the victim information service, procurators fiscal, Crown Office advocates, court administrators and lawyers. It is a difficult environment for a member of the public to face.

The cabinet secretary indicated that he would be happy to engage with COPFS in relation to road traffic deaths and road traffic accidents generally. Families want information from the authorities about deaths and serious injuries that family members have suffered, and I hope that the minister will be able to give us some comfort in relation to that specific issue.

Allusions have been made to the difficulties that the police might have in supplying victims with an interviewer of a specified gender. As indicated previously, I think that it is important that, when services cannot provide what is expected of them, a full explanation should be supplied timeously so that there is transparency on why the services are not supplied and what alternatives are arranged in those circumstances.

Victims may be uncomfortable and distressed about receiving money from offenders, so the victim surcharge payment and compensation orders might not always be appropriate. The minister should give us some indication about whether victims and/or witnesses will be consulted in relation to such arrangements.

In addition, the victim surcharge does not appear to do much for the victim per se. Indeed, the list of services that may be provided from the use of such surcharge payments includes the cleaning of a crime scene, the provision of very basic requirements of the victim and some other peripheral issues, but it does not deal with the long-term needs of a victim after the process has been completed.

Much has been said about the use of the nomenclature “victims” and “complainers”. Many in the chamber will not be surprised that I did not contribute particularly to that debate. It is important that families know that, when they have been victimised as a result of a crime or an offence, that status will be acknowledged. Nevertheless, the balance of ensuring a proper trial and the balance of justice also need to be adhered to.

Much has been said about Scottish Labour’s position that there is a need for a victims commissioner. It is appropriate that Jenny Marra should raise that issue, as it was referred to by individual witnesses who sought someone to act on their behalf to ensure that services are delivered and it was discussed at some length within the Justice Committee.

Scottish Labour wants victims and witnesses to receive the services and information that they deserve. We want victims of serious crime to be given the right to be heard by those involved in sentencing, bail decisions and parole proceedings in the future. I look forward to hearing from the minister in that regard, and I will support the motion at decision time.

Photo of Willie Coffey Willie Coffey Scottish National Party

I am grateful for the opportunity to contribute, and I hope that I can offer a perspective on the issues to complement the obvious hard work that has been carried out by all our colleagues who serve on the Justice Committee and on the Health and Sport Committee.

Getting the proposals right is inevitably going to involve a careful balance between the rights of the accused and the rights of victims and witnesses. The conclusion of the Justice Committee report says as much and anticipates further improvements at stage 2, but the general principles of the bill are supported and that is very welcome.

If the bill is approved, victims and witnesses will be entitled to more information about their case, standards of service will be consistent and clear, restitution orders will be made against those convicted of assaulting police officers, and a victim surcharge will be introduced to require offenders to contribute to the cost of supporting victims.

I note the proposal to allow children more freedom to give evidence in court if they wish to do so. The committee raised a concern about that becoming a requirement, but the cabinet secretary clarified in his response that that will not be the case and that he is happy to discuss the matter with the relevant justice partners.

I know that there is also continuing debate about the extension of special measures to vulnerable witnesses and about the entitlement to contest the use of those measures in court. I have listened carefully to colleagues who, having considered those matters in greater depth, will go on to consider the issues further at stage 2.

From my own experience of the justice system, both as a victim and as an elected member supporting victims, I think that the proposals in the bill will improve the situation for victims in Scotland. In my view, the proposals offer a little tilt in favour of victims that has been overdue for some time.

When the Public Audit Committee looked at the criminal justice system recently, it was clear from one of the charts illustrating the process that the focus is almost exclusively on the alleged offender’s journey through the system. Of course, there are clear and obvious reasons for that, not least of which is that the requirement to obtain justice for offences committed inevitably means that the spotlight falls on the accused and on how they are to be taken on that journey. However, it was not at all clear to me what the victim’s journey looks like or should look like.

Often, victims feel like onlookers staring in through a window while the process takes place and sometimes does not include them at all. That was the feeling of two families in my constituency—one whose daughter was murdered and the other whose daughter died in a tragic accident. Both families were clearly victims who needed support. They needed to be at the centre of the processes that followed, but they were not. That led them to feel alienated from a system that they desperately hoped would provide closure for them. They expected to be in the loop at all times and to feel that they, too, were key parts of the process rather than left feeling like innocent bystanders who were being carried along in the slipstream.

To address that issue, the bill must regard victims and witnesses as integral to the justice system. I know from the committee report that there has been a call for standards of service to be set out in regulations. If the Government is not minded to effect that proposal through the bill, I hope that it will give consideration at least to setting out guidance advising what the victim’s journey is supposed to look like.

From the initial incident and evidence gathering through to the trial or fatal accident inquiry—and beyond to any further investigations—victims and their families must be equally served by good communication, by access to information and by clear indications of timescales, of the extent to which they can participate and of any further options that are open to them that they may wish to progress. That level of support should be automatic rather than offered only on request. If it was, many victims and their families would begin to feel that the justice system is about them, too.

My attention was also drawn to the proposal to allow victims to make representations to the Parole Board when a prisoner becomes eligible for release. As the cabinet secretary is aware, one of the families to which I have referred is concerned to ensure that a full and detailed risk assessment is carried out on any prisoner who is eligible for release and that public safety is paramount in making that decision. I very much hope that the views of victims can be taken into account in that process. Perhaps that can be extended to the families who are affected by the crime, too.

I am encouraged by the proposals in the bill and by the direction of travel that we are taking in Scotland to support victims and witnesses. Setting new standards of service, providing better access to information and better communication and, we hope, putting victims at the centre of the justice system will together be a further step in delivering a fairer justice system, as will the requirement that offenders make reparation to their victims. I think that all those proposals will be supported by the people of Scotland.

As we proceed to stage 2, I remind committee members of the comments by the Royal College of Speech and Language Therapists that people with speech, language and communication difficulties are more likely to be the victims of crime. I ask colleagues to bear that in mind as we firm up the bill at stage 2.

I congratulate the committee on its efforts so far. I support the motion that is before us today.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

I am grateful for the opportunity to speak on a subject that goes straight to the central purpose of the justice system—namely, the role of victims and witnesses of crime in that system.

Before I get into the detail, I cannot let the moment pass without referring to an issue that has been raised a number of times, particularly by Labour members. As a member who has been in the Parliament for more than 10 years and, I think, as a rather experienced committee convener, I believe that, frankly, members risk breaking trust in a committee if they sign up to a recommendation in a report and then come to the chamber and oppose that recommendation. That is a mistake, although it is up to members if that is what they wish to do.

Ultimately, the success of our justice system and our society as a whole can be judged by how we treat the victims of crime. Similarly, it should be recognised that witnesses of crime carry out an important civic duty, and we must offer them appropriately tailored support and confidence that their personal safety will be ensured, in addition to providing them with an adequate level of knowledge to contribute effectively to the cases in which they are involved.

I believe that the Scottish Government’s making justice work programme will improve the standards of treatment for victims and witnesses as well as improving the criminal justice system as a whole. Constituents have outlined to me—and, I am sure, to other members—their experiences of crime. The clear psychological and financial pressures of being a victim of crime are self-evident. The trauma and emotional burden of such events are far reaching and can often affect entire families and communities.

While trying to overcome what can often be traumatic events, victims must also try to deal with everyday practicalities. Under normal circumstances, it can often be difficult for people to manage their life, finances and personal relationships effectively. When people are given the additional burden of recovering from the emotional scars of a disruptive criminal event in their life, we must do everything that we can to support them. That can also be applied to witnesses to crime, who should be able to count on the law’s full support, as their contribution is essential to an effective justice system.

New measures such as the victim surcharge could help to strengthen the perception among victims that the perpetrators of crime are being held to account for the damage that they have caused. I welcome the structure of priorities that has been put forward for the consideration of the amount that an offender needs to pay—namely, the prioritising of the compensation payment, followed by the victim surcharge and then the principal fine.

As Victim Support Scotland highlighted in its consultation response,

“compensation following a crime is often of deeper significance than simply receiving a financial award. Of central importance is the formal acknowledgement and recognition of the suffering of the victim, as well as a validation that what the victim says is true. As such, compensation is an important part in the victim’s recovery process.”

Any requirement for a compensation payment to the victim should ensure that the payment is made as soon as possible. Failure to do so might ultimately lead the victim to further feelings of victimisation and could prevent them from having some form of closure.

I understand that, in some cases, receiving money from the offender might be distressing for the victim. I would welcome further assurances from the cabinet secretary that the views and needs of victims will continue to be considered before each individual decision is made on the appropriateness or otherwise of imposing a compensation order.

When looking through the consultation, I was encouraged to see the level of engagement in the process, with 59 organisations sending submissions to the Scottish Government. A number of consistent themes emerged from the submissions, two of which I would like to highlight.

First, the consultation responses repeatedly highlighted the need for victims and witnesses to have access to information that is consistent, clear and accessible. The creation of an online information hub will assist in the development of that principle and, if implemented effectively, will greatly assist in improving accessibility.

I note the Justice Committee’s concerns that the online information hub should not be a replacement for human interaction and support for victims. I therefore welcome the cabinet secretary’s clarification that any new online information hub would act only as a supplement to, rather than a replacement for, the vital face-to-face support that victims obviously need and already receive.

Secondly, allowing victims to access more general practical information about the justice system is another welcome measure. Previous constituency cases in which I have been involved have shown that constituents would welcome measures that give them a better understanding of procedures that have the potential to have a significant impact on their lives. I also understand that constituents would feel a greater sense of engagement with the criminal justice system more generally if they were given more case-specific information that is relevant to their circumstances. Indeed, any additional support or information could alleviate the frustrations that victims often feel as a result of having no previous knowledge or experience of the justice system.

Consultation responses also consistently called for victims and witnesses to have access to information that gives them an accurate appraisal of their active role within the system as an extension to the proposal of an online information hub. If the participants have greater understanding, it will lead to an overall more engaging experience and ensure that their expectations are managed more effectively.

Victims and witnesses should not be made to feel that their role has been downplayed to such an extent that they feel undervalued or detached from the process; nor should their part be overinflated such that their expectations of an active role cannot realistically be met.

In particular, clarity has been sought about the definition of “participate effectively” when referring to a victim’s or witness’s active participation. A number of organisations expressed confusion in their consultation responses about what exactly that term implied. Other members, including the convener of the Justice Committee, raised that point earlier. I hope that the cabinet secretary is able to offer additional clarity on the concerns that the Justice Committee raised on that point.

The Victims and Witnesses (Scotland) Bill is relatively broad in its scope, and there are a number of other points that I would like to be examined in further detail. The extension of the victim notification scheme, the establishment of the national confidential forum and the improvement of support for vulnerable witnesses are all worthy of further debate. However, I am pleased to note the Justice Committee’s support for the general principles of the bill and I am delighted that the Scottish Government has continued to commit to improving the experiences of people within the justice system.

Photo of John Finnie John Finnie Independent

How we deal with victims and witnesses marks the sort of society that we are. I want us to be a society that cares about, and is compassionate towards, victims and witnesses.

With my background as a police officer, I know only too well that police officers, procurators fiscal and court officials routinely deal with witnesses and victims. However, we forget at our peril that, for many victims and witnesses, it is a unique experience and their first engagement with those services. There are, of course, particular challenges associated with repeat victims.

Since my time, the police and the Crown have made huge progress with regard to domestic abuse and sexual crimes. There is still a way to go on those, and the bill will play its part, although it is not without some challenges.

There has been much discussion in the debate about giving witnesses and victims the right to certain information. The Justice Committee supported that call and the proposal for an online hub. Like others, I am grateful for the cabinet secretary’s response to the stage 1 report, which suggested that the online hub was not intended as a replacement for human contact. There is no substitute for an empathetic human. Let us also not forget that the needs of those who are not online must also be serviced.

The phrase “Clear standards of service” has been mentioned. Often, unintended offence is caused to victims by the manner in which information is or—more commonly—is not relayed. Such information can relate to changes of plea, charges being dropped and the accused being released on bail, for example.

The children’s commissioner gave the committee an excellent document—“Children’s Rights Impact Assessment: The SCCYP Model”—in which he refers to the standards of service and the fact that there is no mention of their being monitored, evaluated or reported on. I note that, in his response to the stage 1 report, the cabinet secretary said that there would be individual standards. I am sure that the committee will want to look further into that.

I see no intrusion into the rights of the accused. A presumption of innocence must apply. The bill certainly passes the human rights test and is not in conflict with human rights legislation.

There are degrees of vulnerability. No one welcomes standing in a court and, as is often the case, being required to point out the accused. Most will feel vulnerable. The presumption that certain categories of person are more vulnerable and given the right to use special measures is important. I welcome it, and I also welcome the witness assessment.

However, there is no point in assessing need unless we meet it. One way that we will move towards meeting the need is the commitment from the Scottish Court Service in the past couple of weeks to make facilities for special measures available throughout the country. That is to be welcomed.

The Justice Committee asked the Scottish Government

“to make every effort to ensure that removal of the presumption that child witnesses under the age of 12 will give evidence away from the court building does not lead to the unintended consequence of children giving evidence in court against their will.”

That illustrates the differing views. The cabinet secretary has given the following reassurance:

“The Bill makes a small amendment to put more weight on the views of the child so that if a child expresses a desire to give evidence in court”— and some do, along with their parents—

“there will be a presumption that this will be allowed.”

The correspondence from the victims organisations collaboration forum Scotland has been mentioned by some members, such as Alison McInnes, so I will not go into detail on that. I reiterate that the forum has a genuine concern about the right to appeal the use of special measures and calls for the removal of certain provisions from the bill. I note that, in his response to the stage 1 report, the cabinet secretary advises us that he is discussing that with the Crown Office and Procurator Fiscal Service. It is an important issue, and I hope that there is a positive response to the forum’s specific concerns.

Committee members have alluded to the harrowing first-hand testimony that we heard from victims about the traumatic and long-lasting effects on them and their families, friends and entire communities, and the health and wellbeing implications for them. No one wants to be a victim or a witness, and I am delighted that the 40-year low in the level of crime means that there are fewer victims, but there is of course no room for complacency.

We also heard about the discussion of the terms “complainer” versus “victim”. I support and encourage others to support the position of the children’s commissioner that child victims must be believed and they are believed by being given that tag. Perhaps the committee became more hooked up on that point than the general public would be.

In recent days, I have written to the justice secretary and the health secretary asking for Victim Support Scotland to play a lead role in implementing the legislation. It is important that that organisation is involved from the very start. Police liaison officers have a specific case-related role to discharge, and it is not a criticism of that role to say that it is not the same as the hands-on, practical role that VSS can and should have.

As members know, VSS administers the victims’ fund for harrowing cases to provide for things such as a replacement bed for a rape victim or glasses for an older person who has been the victim of a robbery. That is an important early contact for victims, and I would put it in line with the preventative spend that the Scottish Government is following. If we can get the issues right, the cost of individual and family health and employment can be dealt with. That will come if we provide adequate support.

There is a range of other issues, but I do not have time to touch on them. It is fair to say that there are challenges connected with the information technology system and the support that it can give to victims. Graeme Pearson’s comments on that are right. There are also particular challenges in the issue of gender-specific interviewers, not least in rural areas.

I support the principles of the bill, and I look forward to scrutinising it at stage 2.

Photo of Roderick Campbell Roderick Campbell Scottish National Party

I welcome the opportunity to speak in the debate and I refer to my register of interests, as I am a member of the Faculty of Advocates.

I believe that the bill is a welcome step forward and comprises a package of measures that are designed to ensure that those who find themselves caught up in the criminal justice system obtain effective and efficient assistance from the organisations that they have to deal with during criminal procedure, through to trial and sentencing, and after proceedings have come to an end.

We have come a long way in extending the rights of victims and witnesses since devolution began, with the victims’ strategy being published 12 years ago and the national standards for victims of crime being set in 2005. Since then, the victim notification scheme has been extended. Victim statements were introduced for solemn cases from 2009—although, as we have heard, many witnesses do not believe that their statements are accorded as much importance in the process as they would like. We also heard from Graeme Pearson that many witnesses feel quite detached from the process. Nevertheless we have made progress, although we still have a long way to go, as Victim Support Scotland and others have said.

In the short time that is available, I will highlight a couple of points. With regard to reviewing the decision not to prosecute, section 3 of the bill provides that victims will be able to request information about a decision not to proceed with a criminal investigation and any reasons for that decision. That is, of course, in line with the EU directive on victims, and offers victims an additional safety net. I was initially concerned by the idea that victims would be able to challenge the Crown’s decision not to prosecute, but I believe the purpose of the provision is simply to request a review, and that it will introduce greater transparency and accountability. I await with interest the Crown Office’s research on review, which has yet to be disclosed.

With regard to victim notification generally, the effect on a victim of releasing an offender from prison without providing reasonable notice and giving the victim time to prepare physically and mentally for the offender’s return to their community, for example, can be extremely traumatic. Specifically, in relation to life prisoners who have passed the punishment part of their sentence, and when the only considerations are protection of the public and whether the offender represents a danger to the public, it is right that false expectations should not be raised. Although I recognise the right of victims to make oral representation to the Parole Board, it is also right that consideration be given to allowing legal representation for offenders. The process must be balanced.

The Justice Committee recognised that further guidance needs to be developed on the matter. I am pleased that the cabinet secretary and his officials will continue to engage with the Parole Board for Scotland to ensure that appropriate measures are put in place through revised guidance in order that, it is hoped, victims understand the process more fully. I believe also that the revised guidance should allow for the offender to see the victim’s views in most cases when they meet the Parole Board. Again, that would be in keeping with transparency.

I also welcome the cabinet secretary’s assurance that victims who are currently registered on the victim notification scheme will be kept informed of changes to the nature of the information to which they are entitled.

I note the Scottish Government’s position on restitution orders and I have to accept that the focus in relation to the orders should be on the police. However, I also note the flexibility on that issue.

On the more controversial area of the extent to which there should be a right of objection to the grant of special measures, although I accept the argument that it seems to be illogical to extend the categories of vulnerable witnesses for whom access to special measures is automatic, while at the same time bringing in provisions enabling objections to be raised, I nevertheless instinctively side with the lobby that suggests that a right of objection needs to be preserved under ECHR. I heard what Malcolm Chisholm said earlier, but I was not quite sure whether he had misunderstood what the Commissioner for Children and Young People in Scotland had said, as he said that there was no reference to the matter in the EU directive. However, I would be happy to stand corrected if what Malcolm Chisholm described is the children’s commissioner’s position.

Murdo MacLeod of the Faculty of Advocates pointed out that under the Criminal Procedures Act 1995’s section 271D, which is not being reviewed by the bill, a judge can review special measures at any time, even during the trial itself, although it is unlikely that he would do so, save in exceptional circumstances. I think that we need to have faith in judges. I do not see a perfect solution to the problem, and I note that the Government is consulting further. I hope, however, that some flexibility will be preserved, although I recognise that there are real concerns that objections should not be routinely allowed for automatic special measures for children.

With regard to families of road-death victims, although I recognise that we heard evidence from witnesses to the effect that they encountered difficulties in obtaining information from the Crown, I believe that an unfettered statutory right to information would on occasion cause distress—particularly given the content of some photographs of crash scenes. I would therefore welcome a Crown code of practice rather than statutory rights.

Finally, I want to mention separate representation for victims in, for example, dealing with sexual history applications. We ought to recognise that the Crown’s interest may not be identical to that of the victim. It is right that the issue is to be explored further, and I welcome the Government’s commitment to engage with the Faculty of Advocates and Rape Crisis Scotland on it.

The Deputy Presiding Officer:

We move to the closing speeches. Nanette Milne has up to seven minutes.

Photo of Nanette Milne Nanette Milne Conservative

Thank you, Presiding Officer. With a voice that is a little bit like Graeme Pearson’s, I must apologise for my late arrival in the chamber this afternoon, the reasons for which I have explained in writing.

I am pleased to speak at stage 1 of the Victims and Witnesses (Scotland) Bill. Praise is certainly due to the Government for bringing before Parliament a bill that is dedicated to the rights of victims and witnesses. That reflects the growing consensus that victims are not given sufficient thought in the criminal justice system. Of course, what a victim wants more than anything else is not to be a victim at all, but if a crime is committed, the justice system must at all stages deliver for them. It has become clear that that is not always the case.

The victim must not become a side thought, a prosecution witness or a name on a police file who drops off the radar screen unless, or until, a trial commences. The bill goes some way to redress that imbalance in our criminal justice system, which too often places the rights of the accused above those of victims. However, there is room for improvement, as others have said.

The bill will significantly extend the entitlement to special measures that are available to victims and will automatically grant them to witnesses under the age of 18 and to victims of sexual offences, domestic abuse, human trafficking and stalking. It will also allow any witness to be considered to be vulnerable, following assessment. Murdo MacLeod QC told the Justice Committee that he expects that about 18,000 additional witnesses will be deemed to be vulnerable, under the proposals, which will mean that giving evidence will be made easier for a significant number of victims of crime.

The bill will place a duty on courts to consider a compensation order in relevant cases, including where a person has been caused personal injury, loss, damage, alarm or distress as a result of an offender’s actions. Clearly, some victims do not want anything to do with an offender, but many would consider justice to be done if those who caused them harm or loss were forced to compensate directly. I hope that the bill will increase use of compensation orders, but more must be done to ensure that the Scottish Court Service is more effective at collecting fines.

The bill also establishes a victim surcharge, which will require offenders to pay into a fund that will be used to provide practical assistance to victims who have immediate unmet needs. That will go some way towards helping victims in the aftermath of a crime. Again, that policy is welcome, but it is hardly ambitious because—as far as I understand it—the victim surcharge will apply, at least initially, only to those who are given court fines. That means that an offender who is found guilty of a road traffic offence will contribute to the fund, but a violent offender will not. That seems to be far from ideal.

As a member of the Health and Sport Committee, the only part of the bill that I have studied in detail is that which concerns the establishment of a national confidential forum, which was generally welcomed by those who gave evidence to the committee. There were some caveats, however. For example, although the Aberlour Child Care Trust and Children 1st welcomed proposals to create a safe confidential space in which people can discuss their experiences, they pointed out that although some survivors of childhood abuse might find that to be a cathartic experience that helps them to move on, others might find it to be re-traumatising, or might discover that it raises thoughts and feelings that they need to explore outwith the forum.

Some witnesses felt that acknowledgement alone is not enough and that, without remedies, the process could impact negatively on the health and wellbeing of some survivors. There was consensus—as was recognised by the Scottish Government—that access to counselling, therapeutic support, mental health services and advocacy will be essential if the health and wellbeing of survivors are to benefit from participation in the forum. It was agreed that appropriate services must be available for all who take part in the confidential forum, whether they are older people or young adults, whether they have disabilities or mental health issues and whether they live in or outside Scotland, whatever their life circumstances.

A person-centred approach was held to be crucial, with a choice of support being available for up to two years, and there being a one-stop approach to counselling and advocacy. So strong was the stated need for support that the committee wishes the Scottish Government to ensure availability of services for participants in the confidential forum to support them before, during and after taking part—as Duncan McNeil said in his speech—and, more widely, for all adult survivors who may require psychological or counselling support.

The NCF must have operational autonomy if it is to perform its role effectively and with credibility, and some concerns were expressed about the proposal to position it within the Mental Welfare Commission, as a result of fears that the stigma that is associated with mental ill health might transmit to adult survivors of childhood abuse.

However, the committee was reassured that it would be clear to survivors who come forward that they would be taking part in the NCF as a separate entity from the Mental Welfare Commission, and that the forum would benefit from the infrastructure, governance and expertise of the commission.

A number witnesses felt that there is a need to broaden the range of those who are entitled to participate in the forum to include people who experienced abuse in foster care and kinship care. Children 1st and Aberlour want those who have experienced abuse in natural families to be included as well, and there were suggestions that the qualifying age should be lowered.

A number of other issues were raised at committee, which will no doubt be aired at stage 2. Suffice it to say that expectations for the NCF are high. The Health and Sport Committee welcomes what is envisaged, but sees the need for more detail to be provided on how it can work in practice.

Although the bill is largely to be welcomed, it can undoubtedly be improved and built on. It will help to put the rights of victims and witnesses near the front of the minds of the police, the Crown and the Scottish Court Service. It is just a shame, as my colleague said, that victims and witnesses were ignored by the Scottish Government when it took the decision to close a fifth of Scotland’s sheriff courts, which has added to the on-going slap in the face for victims of crime that is the continuation of automatic early release of prisoners. However, that is another debate, and I will leave it for another time.

As John Lamont said, my party is supporting the bill at stage 1.

Photo of Jenny Marra Jenny Marra Labour

One of the most important opportunities that the bill has given us is the opportunity to listen to and learn from the experiences of people who have suffered damage—often irreparable damage—as a result of crimes that have been committed against them and their loved ones. In that context, I will consider the bill’s provision for a national confidential forum for survivors of historical abuse.

Since 2004, successive Governments have sought to account for the abuse that children have suffered in residential care in Scotland. The forum represents the latest development in that journey, as Duncan McNeil said, and stems from the time to be heard pilot, which listened to the stories of 98 survivors of abuse at Quarriers residential care homes alone. We recognise the need for survivors to be heard in a confidential forum and fully support the approach. Many people’s suffering can be eased by acknowledgment of the abuse, which is hugely beneficial.

In her response to a parliamentary question in April from Neil Bibby, the Minister for Community Safety and Legal Affairs said that a consultation on the time bar in relation to historical abuse had just closed and that responses were being analysed. She noted that the Victims and Witnesses (Scotland) Bill was going through Parliament and suggested that the member keep tabs on the bill in relation to the time-bar issue. When the minister sums up, will she tell us what progress has been made in analysing the consultation responses and say whether we will have the opportunity to consider altering the time bar during the passage of the bill, as her answer to Neil Bibby suggested? I understand that there have been no proposals so far from the Government to amend the bill in that regard, but I am interested to know whether the Government intends to propose changes to the time bar at stage 2 or stage 3.

We would like the bill to provide for additional protection for families who are affected by fatal road accidents. The committee heard evidence from Scotland’s Campaign against Irresponsible Drivers, which is campaigning for a statutory right to access investigation materials on request. The “on request” element is an important part of the proposal. I listened carefully to Colin Keir’s personal account and am convinced that it would be extremely harrowing for a family to be given such documents when they do not want them. That should not happen. However, access on request will give grieving families the information that they need if they are to understand what happened to their loved ones.

Photo of Colin Keir Colin Keir Scottish National Party

Does Jenny Marra agree that grieving relatives would not necessarily know what they were seeking, even though they were asking for all the information? The information might include harrowing details of road traffic accidents, which might do more harm than good.

Photo of Jenny Marra Jenny Marra Labour

I take Colin Keir’s point; this is not an easy issue. I have come to the conclusion that SCID’s campaign for a statutory right to access material on request is a better approach. Many families who gave evidence to the committee had not been given access to documents—documents that they really wanted because they did not know the circumstances under which their loved ones had lost their lives. We need improvements in that regard. Many families would like a statutory right to access information on request, so I hope that the Government will consider amending the bill at stage 2 to provide for such a right. I note that there is support for the proposal among the Government’s back benchers, as Mr Allard articulated.

Sandra White commented on the need for better provision in the bill for victims of human trafficking, and the organisation CARE, which works with victims of trafficking, has made specific suggestions in that regard. CARE’s proposals stem from provisions in the European Union anti-trafficking directive, which came into force in Scotland on 6 April this year. The directive requires three steps to be taken to protect victims of human trafficking that are not included in the bill—to avoid unnecessary repetition of interviews during investigation, prosecution and trial; to avoid visual contact between victims and defendants while they are giving evidence in interviews and cross-examination; and to avoid unnecessary questioning about the victim’s private life, which I touched on more widely in relation to sexual offences in my opening remarks.

The directive also outlines a range of measures—in article 15.3—specifically to protect child victims. Given that the date for implementing the directive has passed—it was 6 April—I would like to know whether the Government intends to use the bill as an opportunity to put those protections in place, because victims of human trafficking are particularly vulnerable. I understand from correspondence between the cabinet secretary and me that the Scottish Government believes that it is compliant with that directive. Perhaps the minister will tell us in her closing speech whether the Scottish Government believes that the protections for victims of human trafficking that I outlined exist in other legislation and do not, therefore, need to be put in the bill.

Although we back the principles of the bill, it is clear that many improvements could be made. Labour’s proposals for case companions and a victims commissioner would improve how we interact with victims and witnesses as well as how we keep the system under constant review. We have made suggestions in areas such as fatal road accidents, sexual offences and human trafficking, and we would like to hear the Government’s proposals for any alteration to the time bar on cases of historical sexual abuse, which the minister mentioned to my colleague previously.

All those suggestions warrant further consideration, and I hope to see progress on them as the bill proceeds to stage 2 and beyond. Scottish Labour will support the general principles of the bill today.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

I thank members for their many—and even occasionally constructive—contributions. I particularly thank those members who sit on the Justice Committee and the Health and Sport Committee for all their work on the bill over the past few months. Christine Grahame rightly reminded us of all the individuals who gave evidence to one or other of those committees, and Duncan McNeil talked in those terms as well. We owe those people thanks for taking the time to give evidence even when it may have been a very difficult thing for them to do.

A huge number of issues have been raised and, frankly, it would be impossible for me to deal with every single point in the time that is available. I hope to deal with some of the main issues that have arisen throughout today’s debate.

Members throughout the chamber clearly share a desire to create a justice system that offers more support to victims and witnesses than there has been in the past. If we are honest, for too long victims were treated as nothing more than bystanders in proceedings. Jenny Marra mentioned a particularly distressing case in her opening speech, which directly affected a constituent of mine, with whom I have been working closely for a number of years. Many issues were raised by the experience of the family concerned. They were pleased to meet the cabinet secretary this morning to discuss the bill, which they see as a big improvement.

The bill may not answer every single question that has been raised today or by others, but it is a significant step towards putting victims and witnesses at the heart of the justice system and it will give them more of a voice. For example, it will enable victims to make oral representations to the Parole Board for Scotland when life sentence prisoners are being considered for release on licence if victims feel more comfortable making their concerns known in that way.

The bill also addresses one of the biggest issues raised by victims and witnesses—that there is a lack of information about cases. Practically every member in the chamber will have had experiences of people who felt that they simply did not have enough information about a case that involved them. The bill will give such individuals the right to certain information from organisations across the justice system, which will ensure that vital information is available to those who need it, when they need it. I hear Christine Grahame’s request that any information be supplied in plain English—we would all echo that desire.

Outwith the bill, we have committed to working with our justice partners to examine the feasibility of setting up an online information-sharing hub, to make accessing information easier. It is important that everybody recognises that the bill is not the only work that is being done in respect of victims and witnesses.

The creation of the victim surcharge will ensure that offenders contribute directly to a fund to assist victims of crime. The fund will provide prompt and practical support to victims when they need it most: in the immediate aftermath of the crime. There may be reservations about that, which I understand, but Stewart Maxwell is right to commend its introduction. Of course, the victim surcharge will be considered sensitively.

A number of members, including John Lamont, raised the issue of the definition of the word “victim”. I confess that I am baffled by this sudden apparent confusion over the definition. Neither as an MP or MSP nor in my previous profession as a lawyer have I ever had any doubt about who or what a victim was, and I am curious as to quite how the concern has arisen. In the Government’s view, it does not seem to be a particularly well-founded concern, given that the word “victim” is used so much by the public and is well understood, as it is throughout the justice system.

Sandra White and Jenny Marra requested that the Government give further consideration to the issue of trafficked victims and I confirm that the Government will be happy to do so.

Colin Keir and Gil Paterson both raised the question of same-gender support, particularly in sensitive criminal proceedings. They will be pleased to know that the cabinet secretary is in discussion with Rape Crisis Scotland regarding medical examiners and is looking at the wider issue. The Government will discuss it further before stage 2 with the police and, crucially, the national health service.

Photo of Jenny Marra Jenny Marra Labour

The minister said that she would be happy to look at protection for victims of human trafficking. Will she confirm that the three measures that are specified by the EU directive are already in Scots law, or, if they are not, that the Government will consider including them in amendments to the bill at stage 2?

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

Jenny Marra probably knows that those matters are under review and that the Government is working directly with the police on them.

I know that each member asked about a number of different things, but I am trying to collate some of the key points. Alison McInnes asked about anonymity orders. There has been discussion with the police and the Scottish Crime and Drug Enforcement Agency, but so far there does not seem to be compelling evidence to support the introduction of investigative anonymity orders in addition to the protections currently in place, such as witness anonymity orders. However, the discussions are on-going.

Being a witness is a vital civic duty and giving evidence in court can be an unfamiliar and uncomfortable experience. Often that fact is forgotten by professionals in the system. Vulnerable witnesses often need help to give their best evidence, and the bill will make a number of changes to improve the way in which vulnerable witnesses are identified and supported to do that. The changes include raising the age at which a witness is no longer considered to be a child from 16 to 18 and introducing a presumption that alleged victims of certain crimes are vulnerable and should be able to access special measures. The bill will also ensure that every witness is given an individual assessment to determine their potential vulnerability, so that the appropriate support can be put in place.

I was interested in a general theme in both Christine Grahame and Roderick Campbell’s speeches, which was an overarching concern about the management of expectations of both victims and witnesses and the need to ensure that people are not led to believe that they will get more than is realistically possible. That will be kept in mind.

The bill will create a duty on criminal justice agencies to set out clear standards of service for victims and witnesses, and an effective route for complaints. That will ensure that victims and witnesses know how they can expect to be treated when dealing with each justice agency and how to complain if standards are not met.

A number of members, including Malcolm Chisholm, raised the issue of the appointment of a victims commissioner. There has been some heated debate around that idea, but its proponents must respond to the opposition of both Victim Support Scotland and Scottish Women’s Aid to the proposal.

Along with Graeme Pearson and Willie Coffey, Malcolm Chisholm also raised concerns about how the standard of service is to be monitored and asked questions related to that. I reassure those members that victim support organisations will be consulted on the setting of standards and that the Government is willing to consider the establishment of a formal monitoring process. Those things are still under consideration.

Christian Allard concentrated on access to information about fatal road accidents. It would be useful for the chamber to take a moment to commend the Dekker family and SCID for their tireless work on the issue of road deaths over many years in the Parliament.

The establishment of the national confidential forum is a critical part of our SurvivorScotland strategy, which aims to improve the health and wellbeing of all survivors of childhood abuse. The forum will be unique in offering people who were placed in institutional care as children acknowledgement and belief without judgment or interrogation. It will also be uniquely placed to reflect the experiences that it hears in recommendations to policy makers and service providers to ensure that the mistakes of the past are not repeated. It is important and timely that people who grew up in children’s homes and other institutions are given a voice. That is particularly important for survivors of historical institutional abuse who may never have had the opportunity to share their experiences.

The focus of the national confidential forum on institutional care is on evidence of what works. We know that the model of confidential acknowledgement that is to be offered by the forum works for people who were placed in institutions as children. It will be particularly important for people who were placed in care at a time when there were no national standards, no inspection regimes and few routes for children to raise complaints.

It is clear that the forum is not the whole response. Many of Duncan McNeil’s comments were directed at that concern. I reassure him that the Government is considering how we might take cognisance of the issue of those who were abused while in foster care. They have not been forgotten. The centre for excellence for looked-after children in Scotland and In Care Survivors Service Scotland are currently undertaking work that is funded by the Scottish Government into how acknowledgement as a model could work in the context of foster care. I accept that some stakeholders think that the bill has not gone far enough. However, I believe that the forum must have a clear and distinct role and scope, which will enable it to complement but not duplicate the range of other responses that are available for survivors of childhood abuse.

I have been heartened by the general support for the bill and for the wider aim of improving support for victims and witnesses. The Government is not, however, complacent and recognises that there is a need to give further consideration to some of the issues that have been discussed today. We will work with colleagues throughout the process to ensure that victims’ rights are embedded in our justice system.