1. Victim Statements (Prescribed Courts) Order 2003 ( SSI 2003 No. 563).
2. Victim Statements (Prescribed Offences) (Scotland) Revocation Order 2005 ( SSI 2005 No. 526); Victim Statements (Prescribed Courts) (Scotland) Revocation Order 2005 ( SSI 2005 No. 612).
3. Criminal Justice (Scotland) Act 2003, s14(2)(a). Under s14(2)(b), a procurator fiscal has a discretion to permit a victim to make a victim statement at an earlier stage.
4. See Annexes 1 and 2.
5. See Annex 3.
6. See s14(5) of the Criminal Justice (Scotland) Act 2003: "A prosecutor must (a) in solemn proceedings, when moving for sentence as respects an offence; and (b) in summary proceedings, when a plea of guilty is tendered in respect of, or the accused is convicted of, an offence, lay before the court any victim statement which relates (whether in whole or in part) to the offence in question".
7. Although the pilot schemes were managed by VIA in Edinburgh and by the procurator fiscal in Ayr and Kilmarnock, this was a reflection of existing arrangements ( VIA not having been rolled out across Scotland at the time) and was not intended to provide two different ways of administering the pilot schemes for the purposes of the evaluation (see Justice 1 Committee, 2003, col 68).
8. Criminal Justice (Scotland) Act 2003, s14(2).
9. From March 2004 onwards. Prior to this a system of paper data transfer was in place.
10. 1 = non sexual offence of violence; 2 = sexual offence; 3 = theft by housebreaking; 4 = racially motivated offence; 5 = death by dangerous driving; 6 = fireraising.
11. See Annex 1 (pre July 2004 letter) and Annex 2 (post July 2004 letter).
12. This was not always the case.
13. These limitations are discussed at para 5.4 below.
14. In the data supplied by the Edinburgh pilot site this was not an issue, as the staff at the pilot sites provided details of the most serious charge against the accused only. The information provided was mostly in terms of the broad category of the offence rather than the specific offence. See para 2.5 above.
15. See Table 4.6 below.
16. At this stage it was not possible to interview statement makers as the Invitation to Tender had specified that no interviews with statement makers should take place until their case had concluded, and it was not until some way into the evaluation that there existed a sufficient number of concluded cases involving statement makers to make a sample of statement makers cost effective.
17. The remainder of the sample either declined to be interviewed or proved to be unobtainable using the contact details provided.
18. See below, Table 4.1. This is deliberate, as the intention was to sample an approximately equal number of statement makers and non-statement makers.
19. All those who took part in the telephone questionnaire survey were asked if they would be prepared to take part in a longer face-to-face interview at a later date.
20. The Victim Information and Advice branch of the procurator fiscal service. VIA were responsible for administering the pilot victim statement scheme in Edinburgh (see para 1.5 above).
21. Informal discussions also took place with representatives of Rape Crisis Scotland and the Women's Support Project in order to establish the extent (if any) of their involvement with the pilot victim statement scheme. The discussions indicated that these organisations had only had very limited - if any - contact with the scheme and therefore formal interviews were not carried out.
22. Criminal Justice Act 1993, s5.
23. A difference that is immediately apparent between this and the Scottish pilot scheme is that in the latter the letter inviting the victim to submit a victim statement was sent separately to any other communication from the procurator fiscal.
24. Separate arrangements are made for those completing a personal statement as the next of kin, where they are not asked to make a witness statement. In these cases, the statement is still taken by the police, rather than completed by the next of kin themselves.
25. For recent English proposals in this regard, see below, para 3.13.
26. This may reflect the fact that continental legal systems traditionally place less weight on oral testimony (and more on written evidence) than is the case in common-law jurisdictions, which may affect the perceptions of victims as to the relative merits of oral and written statements.
27. See para 3.5.
28. This was not automatic. A police officer visited only if the victim opted into the scheme by returning a reply slip expressing a desire to make a statement.
29. Metropolitan Police District.
30. Offences included in the schemes were "domestic burglary, domestic violence, assault occasioning grievous bodily harm (Offences Against the Person Act 1861, sections 18 and 20), sexual assault, robbery, criminal damage over £5,000, racially motivated offence, and attempting or conspiring to commit any of these offences" (Sanders et al, 2001, p450 n1).
31. See Table 4.1 below.
32. In the Scottish pilot scheme response rates were clearly related to offence seriousness: see para 4.20 below.
33. Analysis of the data does indicate a very low response rate for statement packs sent out in November 2005 - this is almost certainly because some victims who did eventually return statements had yet to return statements by the time the final batch of electronic data was transferred.
34. See the discussion of the English pilot scheme in para 3.16 above.
35. As this chapter will shortly demonstrate, response rates in the Scottish pilot scheme increased the more serious was the offence (see para 4.20 below).
36. The initially low response rate for period 1 can be explained in part by the fact that, in Edinburgh, very few statement packs in solemn cases were sent out during this period (see para 1.3 above where this difference in the procedure adopted in Edinburgh is noted). As response rates appear to be related to offence seriousness (see para 4.20 below), the low response rate in Edinburgh during this period is to be expected.
37. See para 4.20.
38. Figures are not available for Edinburgh as charges were not broken down in this level of detail in the paper data transfer system.
39. Cases of theft by housebreaking have a particularly low response rate: see Table 4.6 below.
40. See Annex 1 (pre July 2004 version) and Annex 2 (post July 2004 version).
41. The figure of 14.8% may be a slight under-estimate of the true response rate. The final batch of electronic data was transferred to the researchers in the first week of December 2005. There may be a few victims who were sent statement packs towards the end of October 2005 who returned statements too late to be included. If this is the case, the tiny difference between response rates to draft 1 and draft 2 of the letter may be even smaller.
42. Because of the different procedure adopted in Edinburgh in respect of solemn cases: see para 1.3 above.
43. See para 4.20 below.
44. Once the revised letter came into operation, this was no longer a problem, as the wording of the opt-out clause was changed to permit the researchers to receive personal information about individuals who have opted out (see para 2.6 below).
45. For the Edinburgh sample, information is available in terms of the general class of offence and this is reported in Table 4.6. The paper data transfer system established with Edinburgh did not, however, provide the researchers with detailed information on the nature of the offence.
46. Includes rape, indecent assault, lewd and libidinous behaviour or practices and sexual offences under the Criminal Law (Consolidation) (Scotland) Act 1995.
47. Includes murder, culpable homicide, abduction, aggravated assault, assault (including assault on a police officer under s41 of the Police (Scotland) Act 1967), and robbery.
48. Includes racially aggravated harassment under s50A of the Criminal Law (Consolidation) (Scotland) Act 1995 and (where this information is available) racially aggravated offences under s96 of the Crime and Disorder Act 1998.
49. Includes death by dangerous driving and fireraising.
50. This finding is commented upon in more detail in paras 4.22 to 4.23 below.
51. Includes indecent assault; lewd, indecent or libidinous behaviour; offences under Part I of the Criminal Law (Consolidation) (Scotland) Act 1995; and offences under the Mental Health (Scotland) Act 1984.
52. Includes assault with intent to rob.
53. Includes assault to injury, severe injury, impairment, disfigurement and/or danger to life. It includes domestic assault, but not assault with intent to rob (which has been included in the category of robbery).
54. Includes housebreaking with intent to steal.
55. Other than in relation to fireraising where there were very small numbers involved (only 8 statement packs sent out).
56. The maximum penalty under s41 is 3 months imprisonment (or 9 months if the offender has been convicted of a similar offence within the previous 2 years). There is no maximum penalty for common law assault and the potential sentence is limited only by the powers of the court in which it is prosecuted.
57. After electronic data transfer came into operation on 22 March 2004, the researchers no longer received information on whether the case was solemn or summary.
58. Data to this effect was submitted to the Scottish Executive as part of an quarterly report at an earlier stage of the project.
See Table 1 of the second quarterly report submitted for this project on 27 May 2004.
59. Where the victim was aged under 14, the statement was made by their parent, guardian or other carer on their behalf.
60. Where a child was under 14, the statement was made by their parent, guardian or other carer.
61. Once again, the relatively high overall response rate figure reflects the fact that statement makers were over-represented in this sample, for the same reasons as outlined in relation to Table 4.7.
62. See para 3.16 above.
63. See para 4.20 above.
64. On this, see chapter 7 below. This information is, of course, subject to the usual limitations of self-reporting: even where responses are entirely honest, people do not always do what they say they will do.
65. The situation could also arise whereby a victim never got the chance to make a victim statement, despite the offender being convicted. This would have happened in a so-called "lost case" where the offender pled guilty from custody at the first opportunity and was sentenced immediately (see chapter 9).
66. Most commonly this occurred where the original charge was one of assault, but a plea of guilty to breach of the peace was accepted.
67. See para 7.29 below.
68. The more serious the offence, the more likely it was that a victim statement was made: see para 4.20 above.
69. Other offences (such as rape and murder) were left out of this analysis because the small number of cases involved did not make the exercise worthwhile.
70. There is no obvious reason why the pattern of case outcomes would not be replicated in this way, and, while noting this limitation to the data, the researchers do not believe that the validity of the research findings is affected.
71. This will still be a slight under-estimate as a cut-off date of statement packs sent out by the end of October 2005 was chosen for the purposes of the analysis and thus some cases in which a statement pack was sent out were not included in the analysis at all: see para 4.2 above.
72. This category includes restriction of liberty orders; drug treatment and testing orders; hospital orders; and absolute discharges.
73. Other offences (such as rape and murder) were left out of this analysis because the small number of cases involved did not make the exercise worthwhile.
74. On this, see the views of sheriffs interviewed reported in chapter 7.
75. The remainder of the sample either declined to be interviewed or proved to be unobtainable using the contact details provided.
76. The process by which these interviewees were selected is described above, paras 2.14-2.15.
77. For the purposes of this Table, the 2 respondents who answered "don't know" to questions asking whether they regarded particular effects as serious are treated as having not reported serious effects.
78. See above, paras 4.17-4.23.
79. The fact that they chose not to make a statement despite thinking it was compulsory was not explored with these respondents given the structured nature of the telephone questionnaire survey.
80. To our knowledge, and on the basis of the interviews undertaken with those involved in the scheme, although it was possible, it never actually happened.
81. For the relationship between knowledge of the scheme and the extent to which the respondent read the victim statement literature, see Table 6.8 below.
82. Not all respondents were included in this analysis because some could not recall receiving any literature about the victim statement scheme (see Table 6.9 below). In addition, the respondent who did not read any of the literature and the 2 respondents who could not recall how much of the literature they had read (see Table 6.10 below) were left out of the analysis.
83. See Table 6.3 above.
84. The total in this column is greater than 10 as some respondents gave more than one reason for their answer.
85. Although the fact that 22 of the 88 statement makers hoped that the result of their statement would be "a conviction" suggests that this is not the case (see Table 6.15 below).
86. The total in this column is greater than 100% as respondents could give more than one answer.
87. Procurators fiscal did comment, however, that they occasionally obtained additional information as a result of a victim statement being made. See para 7.23.
88. The total in this column is greater than 100% as respondents could give more than one answer.
89. The total is this column is greater than 5 as respondents could give more than one answer.
90. The total in this column is greater than 18 as some respondents gave more than one answer.
91. Non-statement makers were also asked this question but their responses are reported separately: see Table 6.28 below.
92. The total in this column is greater than 100% as respondents could give more than one answer.
93. Only 62 of the 94 non-statement makers gave any response to this question.
94. A misconception of the scheme as the statement is not read out in court but is simply passed to the judge or sheriff to read.
95. Statement makers were also asked this question, but the results of this are reported separately: see Table 6.24 above.
96. The total in this column is greater than 100% as respondents could give more than one answer.
97. These figures total more than 100% as the offender could have been given more than one type of sentence (for example community service and a fine).
98. See paras 4.17-4.23 above.
99. A point already made in relation to the case outcome analysis: see para 5.13 above.
100. The total in this column is greater than 127 as some respondents gave more than one answer.
101. It is not clear whether the theft of the bike was related to the assault in respect of which the victim had been given the opportunity to make a statement.
102. The total of this column is greater than 35 as some respondents gave more than one answer.
103. This would have been available from victim support, but it may be that the respondents were unaware of this or thought that assistance should be provided as a matter of course (at present victims have to request it).
104. Taken together, these two categories total 27% rather than 28% due to rounding.
105. Although it may be that at least some of these respondents had simply forgotten about receiving a pack.
106. It must be remembered that, because cases necessarily take some time to proceed to a conclusion, there is an inevitable time-lag between a statement being made and its being put before a judge or sheriff, assuming the case results in a conviction. In a significant number of cases, the statement will be put before the court some time (possibly a considerable time) after the pilots were brought to an end in November 2005, because the right to make a statement will have been acquired before the relevant date.
107. Of the Criminal Law (Consolidation) (Scotland) Act 1995.
108. See Annex 1 for a copy of the letter used prior to July 2004 and Annex 2 for a copy of the revised letter. See Annex 3 for a copy of the victim statement form.
109. See para 1.5 above for an explanation of the 2 different modes of operation used in the pilot scheme.
110. In the telephone interviews, only one respondent gave the short deadline as the reason for not making a statement: see para 6.61 above.
111. However, it should be noted that in the English pilot schemes, postal administration of victim statements resulted in a higher response rate than the other methods employed. See para 3.14 above.
112. A view confirmed to some extent by the findings of the telephone interviews: see Table 6.25 above.
113. In the telephone survey undertaken, 56% of respondents were aware of this (see para 6.17 above).
114. Telephone and face-to-face interviews confirmed that this was of concern to some victims, although a larger proportion of victims were encouraged to make a statement by the fact that the accused would see it than were discouraged. See Table 6.25 and para 6.18 above.
115. See para 7.41.
116. On this, see also the concerns raised in paras 7.30-7.41 below about fairness to the accused.
117. See para 3.6 above for an explanation of the way in which the victim personal statement scheme operates in England and Wales.
118. As s14(5) of the Criminal Justice (Scotland) Act 2003 provides, the court must "have regard to" any victim statement made when sentencing an offender.
119. The legislation specifically provides for this, requiring sentencers only to have regard to as much of the statement "as it considers to be relevant to [the] offence" (s14(5)). On the issue of irrelevant information contained in victim statements, generally, see paras 7.30-7.39 below.
120. Compensation orders appeared to be a more likely case disposal where a victim statement was made: see para 5.14 above.
121. Although, as the content analysis of victim statements revealed, victims very rarely expressed opinions about sentence in their victim statements.
122. The same respondent did say later, however, that "I don't think, in my experience, they're doing much harm to the accused."
123. This may be read alongside the finding that 18% of statement makers surveyed by telephone believed that little or no consideration had been given to their statement (table 6.23 above).
124. None of the sheriffs interviewed by us stated that they would automatically take such an approach to all statements which contained irrelevant information, although some noted that they had received statements where so much of the information contained therein was irrelevant that they were effectively of no use.
125. For example the comments about the documentation raised by victim support workers (see para 7.5); the comments of the sheriffs who thought that information on the impact of the crime would be better filtered through the procurator fiscal (see para 7.21); and the view of some respondents that victim statements should be taken earlier in the process (see para 7.24).
126. Incidentally, these went well beyond the charges: on which, see the concerns raised generally about victim statements that contain information about conduct other than that of which the accused has been convicted (in para 7.30-7.39 above).
127. Our own analysis of case outcomes suggests that in 24% of cases a completed victim statement is not put before the court because the accused is found not guilty or not proven or the case is deserted (see Table 5.1).
128. In both cases the parents of deceased victims.
129. Section 1 relates to the personal details of the statement maker. For a copy of the statement form, see Annex 3.
130. The total does not add up to 45 as some statement makers fall into more than one category if they made more than one type of comment on the accused.
131. The total does not add up to 160 as some statement makers fell into more than one category if they made comments on more than one theme.
132. 'J' refers to where the comment was made in one of the 2 'joint statements', filled out by one male and one female victim.
133. Only one of these statements was made in relation to a sexual offence.
134. Where the statement was filled in by someone other than the victim, e.g. a parent.
135. For a copy of the statement form, see Annex 3.
136. For a copy of the statement form, see Annex 3.
137. See para 8.12 above.
138. Henceforth referred to as "lost cases".
139. The exception to this was Edinburgh Sheriff Court where data collection stopped at 15 January 2004, as this was the week in which the researchers visited the court.
140. These figures relate only to summary cases. The problem should not arise in relation to solemn cases where the accused cannot plead guilty on first appearance from custody as at this stage he or she would have only been presented with a petition and not an indictment. It is not competent to plead guilty to a petition.
141. Over the 2 year period of the pilots, 1900 statement packs were sent out in Kilmarnock.
142. SSI 2003 No. 441.
143. SSI 2003 No. 519.
144. SSI 2004 No. 287. This revoked the Victim Statements (Prescribed Offences) (Scotland) Amendment Order 2004 ( SSI 2004 No. 246), as an error in that Order was noted after it had been made.
145. Sections 24-25 of the Schedule to SSI 2003 No. 441.
146. Verbal report to the research team from member of Crown Office Policy Unit made at the Research Advisory Group meeting of 21 June 2004.
147. Hamesucken is constituted by "assault[ing] a man in his own house after having invaded the house for that purpose": Gordon (2001), para 29.09.
148. See Gordon (2001): "now that hamesucken is no longer capital it is not charged as a specific crime" (para 29.09).
149. Brown v HM Advocate 1989 GWD 35-1604 is a reported example of a charge of hamesucken. Ross (1994) also notes that the charge is still used on occasion.
150. It is not known how many were sent out in Edinburgh.
151. Email from member of Crown Office Policy Unit to the research team, 19 April 2004. OSSE is the Office of the Solicitor to the Scottish Executive.
152. So, for example, the institutional writers devoted entirely separate chapters to hamesucken and assault: see Hume (1844), vol i, chapters 8 ("Of Hamesucken") and 9 ("Of Real Injuries"); Alison (1832), chapter 5 ("Assault and Real Injury") and 6 ("Hamesucken"). See also Hume (1844), vol ii, p466 (noting that to charge assault instead of hamesucken would be to allege "a new denomination of crime").
153. Prior to the Criminal Procedure (Scotland) Act 1887. See, e.g., David Robertson Williamson (1853) 1 Irv. 244.
154. See Gordon (2001), p.91, defining robbery as "theft accomplished by means of personal violence or intimidation"; Cromar v HM Advocate 1987 SCCR 635, per Sheriff Pirie at 635.
155. It was added to the list by the Victim Statements (Prescribed Offences) (Scotland) Amendment Order 2003 ( SSI 2003 No. 519). This order was made by the Executive following concern expressed by the Justice 1 Committee "that the list of prescribed offences [included in the initial Order] may exclude some offences, where violence is threatened but not carried out, from the victim statements scheme". See Justice 1 Committee (2003).
156. HM Advocate v Forbes 1994 SLT 861 (where the appeal court reserved opinion on whether housebreaking with intent to rape amounted to attempted rape).
157. Subject to the normal restrictions of the level of the court and any sentencing guidance issued by the Appeal Court.
158. See chapter 6 above.
159. Or, as the legislation states, "have regard to" the victim statement.
160. The legislation specifically provides for this, requiring sentencers only to have regard to as much of the statement "as it considers to be relevant to [the] offence" (s14(5)).
161. As presently occurs under the victim personal statement scheme in England and Wales.
162. Or by another party. In England and Wales the statement is taken by the police at the same time as the police witness statement.
163. These categories reflect those used by the Edinburgh pilot site (see para 4.17 above).
164. Questions varied depending on the role of the interviewee. This particular discussion guide was used for the interviews undertaken with sheriffs and High Court judges.