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CHAPTER ELEVEN: SUMMARY AND CONCLUSIONS
11.1 This chapter summarises the main findings of the research and draws some overall conclusions.
SUMMARY OF FINDINGS
11.2 Our findings in relation to 6 aspects of the research (response rates; victims' views on the pilot schemes; criminal justice professionals' views on the pilot schemes; the content of victim statements; the impact of the victim statement scheme on workload and court processes; and the outcome of cases in which a victim statement was made) are summarised below.
Response rates
11.3 Over the 2 year period of the pilot victim statement scheme, 14.9% of eligible victims took the opportunity to make a statement. At first glance, this figure may seem low in comparison to victim statement schemes in other jurisdictions, most notably the pilot victim statement scheme in England and Wales, where 30% of eligible victims took the opportunity to make a statement. It cannot be stressed too highly, however, that the two schemes are not directly comparable. The range of offences included in the English scheme was more serious and, as this research found that response rates are related to offence seriousness (see para 11.4 below), the difference in response rates is only to be expected.
11.4 Response rates vary notably according to the seriousness of the offence. Response rates were highest among victims (or the next of kin of victims) of death by dangerous driving (60%); murder (60%); sexual offences (46% for rape, 51% for sexual offences excluding rape); abduction (50%); and attempted murder (40%).
11.5 By contrast, response rates were 24% for robbery; 21% for aggravated assault; 17% for assault without any aggravating features; and 14% for theft by housebreaking.
11.6 The lowest response rates were found among victims of an offence under s50A of the Criminal Law Consolidation (Scotland) Act 1995 (racially aggravated harassment) (6%) and victims of an offence under s41 of the Police (Scotland) Act 1967 (assault on a police officer) (4%). These findings, however, almost certainly reflect the general trend for response rates to increase with the seriousness of the offence and not the fact that police officers or victims from minority ethnic groups are inherently less likely to make victim statements than the population at large. For example, assaults on police officers that involve physical violence are more likely to be prosecuted as the common law offence of assault than they are under s41, which has a maximum penalty of 3 months imprisonment compared to the unlimited sentencing powers available for assault generally. 157
11.7 There is no notable relationship between response rates and gender. There is some relationship between response rates and age (the older the victim, the more likely he or she is to make a statement), but it is not a strong one.
11.8 There is no trend, either upwards or downwards, in response rates over time. The re-draft of the initial letter sent to victims, which was simplified in July 2004, had no effect on response rates.
11.9 Response rates were 15% in Ayr; 14.1% in Kilmarnock and 15.5% in Edinburgh. Thus there is no evidence to suggest that the different methods of operation utilised in the pilots, whereby statement packs were sent out by VIA in Edinburgh and by the procurator fiscal service in Ayr and Kilmarnock, had any effect on response rates.
Victims' views about the victim statement scheme
The views of non-statement makers
11.10 The most common reason by far for not making a victim statement was simply that the impact of the crime was not perceived as serious (53% of the 62 non-statement makers answering this question). The second most common reason was a fear of the accused: either a general fear of reprisals (8% of the 62 respondents) or because the victim did not want the accused to know his or her address (8% of the 62 respondents). Six percent of the 62 respondents did not make a statement because they wanted to forget about the incident; and a further 6% did not make a statement because (as they claimed) they had not received a statement pack. Only 3% of the 62 respondents did not make a statement because they did not understand the documentation.
11.11 Only 10% of the 94 respondents thought that their decision not to make a victim statement was the wrong decision. A total of 53% of the 94 non-statement makers still thought that not making a statement was 'definitely' or 'probably' the right decision. The remainder of non-statement makers were unsure.
The views of statement makers
11.12 The most common reason for making a victim statement was simply a desire for the victim to express his or her feelings about the offence (34% of the 88 statement makers interviewed). The second most common reason was to influence the outcome of the trial (23% in general and a further 5% specifically to ensure conviction), indicating a possible misconception as to the purpose of the scheme. This is supported by the finding that, when asked what they hoped for as a result of making a statement, 25% of the 88 statement makers hoped it would ensure that the accused was convicted. A further 10% of the 88 statement makers made a statement for 'therapeutic reasons' and 14% made a statement in order to 'make the accused think about that he/she had done'. Only 5% of the 88 statement makers made a statement in order to influence sentence.
11.13 Statement makers were interviewed after the conclusion of their case and the vast majority (86% of the 88 statement makers) still thought that their decision was 'definitely' or 'probably' the correct one.
11.14 Only 6% of the 88 respondents who made a statement thought that it was 'probably' or 'definitely' the wrong decision. Likewise, the vast majority of statement makers reported that they would make a victim statement again if they were a victim of a similar offence in the future. Only 7% of the 88 statement makers reported that they 'probably' or 'definitely' would not make a statement if the opportunity arose in future to do so. There was a large overlap between these respondents and those who thought that making a statement was the wrong decision. The most common reason given in both cases was that respondents did not feel that their victim statement had made any difference to the outcome of the case.
11.15 In something of a contrast to these findings, 61% of the 88 statement makers reported that making a victim statement had made them feel better, but 38% reported that it had not. Thirty-nine percent of the 88 statement makers found the process of making a victim statement upsetting. The more serious the effect of the offence as perceived by respondents, the more likely they were to find making the statement upsetting. This may not be an entirely negative finding, however, as some statement makers indicated that while the process had been upsetting, they had found it cathartic.
11.16 Statement makers were divided on the extent to which they felt their statement had been taken into account in sentencing. The majority (53% of the 88 statement makers) simply did not know whether it had or not; 25% felt that their statement had been taken into account in sentencing the offender; 22% felt that it had not.
Comprehension of documentation
11.17 The majority of respondents (89%) described the initial letter and accompanying leaflet as 'very easy' or 'quite easy' to understand and 72% stated that they found the leaflet helpful in making their mind up about whether or not to submit a victim statement. Most of those (8 out of 10 respondents) who found the literature difficult to understand were non-statement makers.
11.18 Despite this, comprehension of the victim statement scheme was mixed, with 43% of respondents unaware that any statement made would be shown to the offender; 39% unaware that a statement maker could be asked questions about their statement in court; 22% under the mistaken impression that a statement could be withdrawn once made; and 12% unaware that making a victim statement was optional. This may, of course, simply be because the respondent did not read the relevant part of the victim statement literature, rather than a lack of understanding. The limited analysis that it was possible to undertake suggests that there may be some relationship between the extent to which the respondent read the literature and his or her understanding of the scheme, but this was not a straightforward one, with those who only read "some" of the literature being equally well or even better informed than those who read "most" of it.
11.19 Of the 83 respondents who were aware that their statement would be shown to the offender, 23% were encouraged by this to make a statement. A further 21% were discouraged and 57% stated that it made no difference.
General views
11.20 Respondents' suggested improvements to the criminal justice system tended to focus primarily on improving information and support: more information for the victim on the progress of the case (43% of respondents); for the victim to be told the sentence imposed on the offender (9%); and for more support in court or more information about the court process (7%). Factors relating to influence over the criminal justice process such as 'taking victims' views into account' or 'harsher sentences, more criminals being caught' were secondary concerns (10% and 5% respectively).
11.21 The most common suggestion for improving the victim statement scheme was providing someone to help with the form (5% of respondents). This was followed by: giving more consideration to the statement in court (4%); sending the form sooner after the crime (3%); and preventing the offender from reading the statement (2%).
Criminal justice professionals' views about the victim statement scheme
11.22 The majority of criminal justice professionals interviewed were neutral about whether or not the victim statement scheme should be rolled out across Scotland, with only a minority of respondents expressing any strong views one way or the other. All of the respondents from victim support organisations were strongly in favour of rolling out the scheme, as were procurators fiscal in one of the pilot offices and 2 of the sheriffs. Two of the sheriffs interviewed were strongly against rolling out the pilot scheme.
11.23 The 2 sheriffs who held strong views against rolling out the victim statement scheme did so primarily because of concerns that victim statements risked prejudicing the traditional fairness of the Scottish criminal justice system towards the accused. This was on the basis that prejudicial or irrelevant information could be included in the statement, as there is no independent check or filtering system. The interviews conducted with other practitioners, however, suggest that this has not been a particular problem in practice. Although victims do sometimes go beyond the scope of the charges of which the accused is convicted in their statements, sentencers universally stated that they were able to put this information out of their minds when passing sentence.
11.24 The other main concerns expressed about the pilot scheme (both by those against its expansion and those who were neutral about roll out) were that the scheme did not represent value for money, given the relatively low response rates, and that the scheme may unduly raise the expectations of victims about the influence their statement will have.
11.25 Various reasons for the relatively low response rates were suggested in the interviews. The first was that the initial letter to victims is, even after being revised, still too formal and off-putting. The second was that the deadline set for the return of statements is too tight. The third was that all communication relating to the scheme is in writing and this may discourage victims with low literacy levels. The fourth was that the fact that the offender is able to see the statement may be putting some people off. The interviews undertaken with victims themselves support these perceptions to a certain extent, 158 although the main reason given for not making a statement was that the offence was not perceived as especially serious. It should also be remembered, however, that the sample of victims interviewed as part of the research may not be representative. Given that the researchers were more likely to have accurate telephone contact numbers for those who had completed written reply slips, it cannot be ruled out that those with low literacy rates are under-represented and thus the research under-estimates the extent to which victims do not make statements because all communication is in writing.
11.26 It was suggested by respondents from victim support organisations that at least the first 3 of these perceived barriers could be overcome by allowing VSS to make a follow-up telephone call to those who had received a statement pack to alert victims to the scheme and explain its purpose. This suggestion was made during the operation of the pilots but was not adopted. Some other respondents suggested that response rates could be improved by changing the scheme so that victim support officers personally took statements from eligible victims on a face-to-face basis, rather than operating the scheme entirely by post.
11.27 A number of respondents - sheriffs and procurators fiscal - commented that the information they were now getting in victim statements was useful and went beyond what would previously have been available. A minority of sheriffs stated, however, that they had always asked for information about the effect of the offence on the victim even before the introduction of the scheme and thus the statement scheme, at least for the sentencer's own purposes, was unnecessary.
11.28 All of the sheriffs interviewed stated - quite properly, given that they are required to do so under s14(5) of the Criminal Justice (Scotland) Act 2003 - that they would take account of any victim statement when sentencing, 159 or at least as much of it as is relevant to the offence of which the accused was convicted. 160 The consensus was, however, that it is almost impossible to isolate the effect of the victim statement on the eventual sentence passed, given the vast number of factors that are taken into account in arriving at an appropriate sentence. Thus it is not possible to state conclusively whether or not sentences are more severe in cases where there is a victim statement. The interviews did indicate, however, some examples of cases where the victim statement has influenced the sentencer at least to consider a sentence of a different nature to the one he or she was initially minded to impose.
11.29 Opinion was divided over whether or not the victim statement should be taken at an earlier stage in the process. On the plus side, the memory of the victim may be better at an earlier stage in the process and the statement would be available to the procurator fiscal making the decision on whether or not to prosecute. On the minus side, sometimes the impact of the offence might not manifest itself until a later stage and if statements were taken at, say, the same time as the police witness statement, 161 they might be out of date by the time of sentencing (although this could be mitigated to a certain extent by allowing the statement to be updated).
11.30 Opinion was generally negative on the idea of the victim statement being read out in court. Concerns were raised by a number of respondents that the accused's position could be prejudiced if the information contained in the statement went beyond that of the offence of which he or she was convicted. As the system operates at present, the sentencer can simply disregard 'irrelevant' information without it being made public.
11.31 All of the sheriffs and procurators fiscal interviewed who expressed a view on the matter were of the opinion that the scheme should not be extended to allow victims to express an opinion about sentence or to have any direct influence over the sentencing process.
The content of victim statements
11.32 Content analysis suggested that victims who make statements wish primarily to comment on the emotional impact of the crime rather than the financial or physical impact. This is not reflected in the design of the form, in which the largest box is for physical impact.
11.33 Content analysis also revealed that the most commonly reported impacts in the sample of statements analysed for the purposes of this report were all emotional impacts: that the victim was unable to sleep (39% of the 160 statements analysed); was suffering a general fearfulness or inability to cope (41% of statements); was afraid to go out (28% of statements); or was suffering from depression (28% of statements).
11.34 It was rare for a victim to disregard instructions and express an opinion about the sentence that the accused should receive, if convicted. Only 5 of the 160 victim statements analysed (3%) contained comments of this nature.
11.35 A larger minority of statement makers disregarded instructions not to make comments about the accused, with 45 of the 160 statements analysed (28%) containing comments of this nature. (This figure includes the 5 statements in which the victim expressed a view about sentence.) This still means that the majority of statement makers (72%) kept within the boundaries of the scheme in terms of the information provided.
The impact of the victim statement scheme on workload and court processes
11.36 Given the additional resources made available during the operation of the pilots, the victim statement scheme did not appear to have placed a significant extra burden on either the pilot site offices or on court time.
11.37 To the knowledge of the research team, there were no cases over the course of the pilot scheme in which a defence objection to the content of a victim statement led to a proof in mitigation. Thus it appears that no victims had to face cross-examination about the content of their statement.
11.38 Research to estimate the extent to which potential victim statement cases were "lost" - because the accused pled guilty from custody and was sentenced immediately, thus meaning that there was no opportunity to make a victim statement - has suggested that the number of such cases was relatively low (ranging from 6 over a 12 month period in one court to 26 in another).
The outcome of cases in which a victim statement was made
11.39 Cases in which a victim statement was made were less likely to be deserted than those in which a statement was not made (15% of statement cases compared to 23% of non-statement cases). This may simply be a result of the relationship between offence seriousness and the existence of a victim statement, with procurators fiscal being more reluctant to desert relatively serious offences. The relationship does hold, however, even within the offence categories of assault, aggravated assault and theft by housebreaking (for example 21% of theft by housebreaking cases where no victim statement was made were deserted compared to 9% of theft by housebreaking cases where there was a statement).
11.40 Over the course of the pilot scheme, it is estimated that there were 175 cases in which a victim statement was made but was not put before the court because the accused was not convicted (either because the trial resulted in a not guilty/not proven verdict; the case was deserted; or the accused pled guilty to an offence that did not fall under the auspices of the pilot scheme). These 175 cases represent 24% of all the cases in which a victim statement was made.
11.41 The analysis of disposals undertaken indicates that cases in which there was a victim statement were slightly more likely than cases in which there was not to result in a sentence of imprisonment. This relationship holds in all categories of offence except for theft by housebreaking where a sentence of imprisonment was actually more likely in a case where there was not a victim statement than a case in which there was a victim statement. All that can really be concluded is that there are a multitude of factors that affect the nature of the sentence, of which the victim statement is only one. This conclusion is supported by the findings of the interviews undertaken with sentencers.
11.42 Compensation orders were more likely to be made in a case where there was a victim statement than they were in a case where there was no victim statement (they were made in 8% of statement cases compared to 4% of non-statement cases).
OVERALL CONCLUSIONS
11.43 Over the course of the pilot scheme, only 14.9% of those eligible to make a statement actually did so. It might be concluded that this response rate is low, but it must be seen in the context of the range of offences that were included in the pilots. Response rates varied considerably according to offence seriousness, from 60% for murder and death by dangerous driving to 4% for assault on a police officer prosecuted under s41 of the Police (Scotland) Act 1967. Given this, and the fact that the most common reason for not making a statement was that the impact of the offence was not regarded as sufficiently serious, response rates would almost certainly increase if the range of offences prescribed for the scheme were altered, perhaps, similarly to what was done in England and Wales, including only aggravated assault and not assault with no aggravating features.
11.44 The second most common reason for not making a statement was the knowledge that the accused would see the form, alongside a more general fear of reprisals from the accused (the most common reason was that the impact of the offence was not felt to be sufficiently serious). Thus one way to improve response rates might be to prevent the accused from seeing the statement or, perhaps more realistically, making it anonymous. But this solution is more problematic than it might initially seem. For one thing, it would raise issues of fairness to the accused. But even if this barrier could be surmounted (which is unlikely), it would deprive some statement makers of a positive opportunity. In the telephone survey of victims, 14% of the 88 statement makers interviewed made a statement because they wanted the accused to see it and to think about what he or she had done. Of the 83 respondents who were aware that any statement made would be shown to the accused, more were encouraged by this to make a statement (23%) than were discouraged (21%). For all of these reasons, preventing the accused from seeing the completed statement form is not something that is recommended. It is likely anyway that this aspect of the findings is merely a manifestation of a wider problem that a small minority of victims feel intimidated by the accused and it is best addressed by improving the level of support and protection given to victims generally rather than by adjustments to the victim statement scheme.
11.45 As to what other changes might be made to the scheme to improve response rates, the other reasons most commonly given in the survey of victims for not making a victim statement were that the respondent did not think their statement would make any difference to the outcome of the case; that the respondent simply wanted to forget the incident; and, in a very small minority of cases, that the respondent claimed not to have received the documentation or did not understand it.
11.46 It should be stressed that all of these were secondary reasons compared to the reason that the impact of the offence was not considered serious. At least some of these issues could be addressed, however, by giving a greater role to victim support organisations. Most radically, the scheme could, as was suggested by some of the criminal justice professionals interviewed, be re-designed so that the victim statement is taken in person by a victim support worker. 162 Less radically, the suggestion of VSS themselves that they be permitted to telephone victims after they have received their statement pack could be implemented.
11.47 Having said all of this, the view might be taken that the 'low' response rates are of little consequence and are certainly not a reason not to roll out the victim statement scheme across Scotland. The impact on the workload of either the courts or the procurator fiscal service - taking into account the resources made available to procurator fiscal offices to employ additional administrative staff - did not appear to be too adversely affected by the pilots and very few of those interviewed held strong views against roll out. In the telephone survey of victims, of the 88 respondents who made a victim statement, 61% reported that it had made them feel better, compared to 38% who reported that it had not. Only 6% of the 88 statement makers thought, in retrospect, that making a statement was probably or definitely not the right decision.
11.48 In fact, there were very few objections to the victim statement scheme among the criminal justice professionals interviewed. The issue of fairness to the accused was raised by some interviewees but the experience of the pilots did not reveal this to be an issue of any practical concern. Where issues did arise of statements containing information beyond that of relevance to the charges of which the accused was convicted, sentencers seemed able to put the irrelevant information out of their mind when passing sentence. There were no instances where a defence challenge went as far as a formal proof in mitigation.
11.49 While not denying that there were occasional statements where the victim concerned strayed far beyond the remit of the scheme, the content analysis of victim statements indicated that, by and large, the majority of victims kept within the terms of the scheme in relation to the nature of the information included. It was rare for a victim to express a view on the sentence the accused should receive if convicted and the majority of victims commented only on the impact of the offence and refrained from commenting about the accused more generally.
11.50 The research did reveal a number of practical issues that could be addressed if the victim statement scheme is to be rolled out across Scotland.
11.51 First, there were some misconceptions among the victims interviewed as to the nature and purpose of the victim statement scheme. There was a degree of ignorance about the fact that the statement would be shown to the accused, if convicted; the fact that a statement maker could be asked questions about their statement in court (although this never actually happened); the fact that a victim statement could not be withdrawn once made; and, to a lesser extent, the fact that making a victim statement is not compulsory. In addition, among those who made a statement, there was a degree of misunderstanding about its purpose, with 25% of the 88 statement makers interviewed hoping that their statement would ensure that the accused was convicted. It may be that some of these misunderstandings were the result of victims simply not reading the statement scheme literature (where all of these issues are addressed) or it may be that a further educational effort is necessary.
11.52 Second, a small minority of those who made a statement regretted doing so because they felt that it was not taken into account by the court. Our own analysis of the outcome of cases in which a victim statement was made indicates that, in 24% of cases, the statement was not put before the court because the offender was not convicted (or at least was not convicted of an offence coming under the auspices of the victim statement scheme). It is very difficult to know how this issue can be addressed, if at all. It may be that it is an unavoidable downside of victim statement schemes generally that the expectations of some of those who make a statement will be raised only for them to be disappointed (on this, see Sanders et al, 2001).
11.53 One issue that can very easily be addressed, however, is the design of the victim statement form. The box relating to emotional impact is too small, both in itself and as a proportion of the form as a whole (the physical impact box is bigger but rarely contained more than a few lines; the emotional impact box was often full or had extra pages added). This is especially important if the purpose (or one of the purposes) of the victim statement scheme is a therapeutic one. Indeed, the most common reason for making a victim statement among those interviewed was simply to express their feelings about the offence. A more radical approach would be to abandon the categories altogether and simply ask the victim to comment on the impact of the offence generally. More generally, these findings provide evidence that victims may attach more significance to the emotional effects of crime - as compared to physical or financial effects - than is commonly assumed.
11.54 Finally, the initial letter sent to victims inviting them to make a statement still lacks a certain element of 'user-friendliness', even after it was re-drafted in July 2004. If there is a desire to improve response rates, taking a radically simplified approach to this letter (and perhaps including some of the detail in the accompanying leaflet) may well be effective.
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