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CHAPTER SEVEN: INTERVIEWS WITH CRIMINAL JUSTICE PERSONNEL
7.1 As chapter 2 outlined, formal interviews have been undertaken with 2 High Court judges; 11 sheriffs; 5 procurators fiscal; 3 representatives of VIA; 4 defence agents; and 4 representatives of VSS. Many of these participants were interviewed on more than one occasion. In addition to these formal interviews, the research has been informed by many informal contacts with those associated with the pilot schemes. This chapter reports the views of these individuals under 7 headings: take-up rates; workload and delay; the information provided by victim statements; the effect of victim statements on sentencing; the issue of fairness to the accused; the format of the scheme; and the future of the victim statement scheme.
7.2 In the remainder of this chapter, the masculine gender is used to refer to all respondents, regardless of their actual gender. This is to protect the anonymity of the relatively small number of female respondents.
TAKE-UP RATES
7.3 All those interviewed who expressed an opinion on response rates perceived them as being low. The first batch of interviews with sheriffs, carried out between 7 and 10 months after the commencement of the pilot schemes, revealed that none of them had actually seen many victim statements - around 3 or 4 on average. The second batch of interviews undertaken with sheriffs towards the end of the pilots revealed a similar picture, with some respondents indicating that they were surprised by the low numbers of victim statements. Neither of the High Court judges interviewed had ever seen a victim statement and thus had little to contribute to the evaluation. 106
7.4 Procurators fiscal and the administrative staff responsible for running the schemes also perceived response rates to be low. While the perception in different offices as to which crimes were most likely to produce a victim statement varied slightly, it was generally agreed that most responses related to housebreakings and assaults, excluding domestic violence and assaults upon the police. The response rate for s50A 107 (racially aggravated harassment) was thought to be low in one office but was perceived to be one of the more common offence types in another office. Various reasons for the low take-up rates were suggested by respondents, particularly VSS staff who had clearly thought about this a great deal.
7.5 First, it was suggested by several respondents that the initial letter is too formal and off-putting, despite its revision in July 2004 in order to make it more 'user-friendly'. 108 One VSS worker stated that it was often the case that VSS got a phone call saying "What on earth is this? Am I in trouble?" and observed that "I think the letterhead alone sends people into a spin." Another VSS worker said:
"I've no doubt about it. It's still the letter that's putting people off. It's too official."
7.6 Procurators fiscal from one office had "the feeling that people find it quite intimidating and are not sure what things might mean". A procurator fiscal from another office made the same point, commenting that "it definitely can't be described as touchy feely". A sheriff similarly noted that the "official" nature of the letter and form was not helpful in terms of securing a high take-up rate. Some defence solicitors observed that the form was not "friendly" and there were far too many bits of paper with it, one commenting that it was "like junk mail".
7.7 Picking up on the latter point, a further possible problem in Edinburgh is that victims may be confused by the volume of official paperwork they receive, because of the involvement of VIA, and the roles of the different victim support agencies. In a typical case, a victim is likely to receive 3 sets of documentation through the post: (1) a letter from VIA offering their services as an information provision agency; (2) a letter from VSS offering their services in general as a victim support organisation and (3) a letter from VIA offering the opportunity to make a victim statement (which is on COPFS headed paper and in which VSS contact details are provided if help is required with the statement). On top of all this, the victim will probably also be receiving letters about precognition and appearing as a witness. There is less scope for confusion of roles between support agencies in Ayr/Kilmarnock as the letter inviting the victim to make a statement comes from COPFS and not from VIA. 109
7.8 Secondly, there is a possibility that the deadline set for the return of the statement is too tight. A vulnerable victim might need more time than this simply to come to terms with the effect of the crime before he or she feels able to write about it. VSS officers, who were particularly worried by this possibility, negotiated extensions to this deadline for some victims but thought that there might have been others who simply saw the deadline and gave up entirely. On the other hand, procurators fiscal generally thought that the time limit was entirely appropriate. For instance, staff in one office commented that the victim statement either came back within 2 weeks, well within the time limit, or not at all. Neither sentencers nor defence solicitors raised this issue. 110
7.9 Thirdly, all communication in relation to the scheme was in writing (and in relatively official language) and it was felt that this discouraged some people from making statements, especially those with low literacy levels. One of the defence solicitors interviewed commented that many victims are from the same sector of society as offenders and they are not comfortable with complicated forms, often having difficulties with reading, far less understanding, the material. One sheriff expressed the opinion that the postal nature of the contact, combined with the lengthy nature of the form, largely explained the low response rate. Another observed that the form was official and "off-putting". A third sheriff opined that post is "not a very satisfactory way of doing it … it's very half-baked". 111VSS were helping a relatively large number of victims referred to them (in terms of the total number of statements made), most of whom were confused by the scheme: as early as mid-September 2004, there had been almost 70 such cases across the 3 pilot areas.
7.10 VSS considered that this problem could have been overcome by allowing the VSS victim statement officers to make a follow-up phone call to all of those who received a statement pack. They stressed that this would not have been specifically to encourage people to make statements (as this would be inappropriate), but rather would have been to alert people to the scheme and explain its purpose. During the pilots, VSS had the resources in place to do this and indeed were keen to do so. It was suggested that an opt-out clause could have been included in the initial letter allowing victims to opt out of their details being passed to VSS. An alternative suggestion was that the covering letter in the victim statement pack could have been a letter from VSS rather than VIA or the procurator fiscal's office.
7.11 Fourthly, it was observed that the fact that victims were informed that the defence would see the statement might have been a major concern as regards some crimes. A procurator fiscal suggested that some victims would be put off from submitting a statement because they would be concerned about the form being made available to the accused. 112 Some victims, it was suggested, understood this from the booklet sent with the victim statement pack, others only when it was explained to them. 113 Some other victims did not want to relive the experience; others were scared of reprisals. Of the small number of victims who contacted VSS but subsequently decided not to make a statement, 'fear of reprisal' was the most common reason given (there were 4 such cases between the 1 April and 31 August 2004). Procurators fiscal in one office observed that where victims phoned up their office, which was admittedly not common, it was usually because of a fear of reprisals. 114
7.12 Fifth, a number of respondents pointed out that for a variety of reasons some victims simply had no interest in making a victim statement. One sheriff commented that many victims were connected with the accused and "did not want to make things worse" for him or her. Another noted that many victims were "not particularly interested" in the justice system, a view with which defence solicitors agreed, and 2 other sheriffs thought that the natural reluctance of Scots to express feelings and disclose personal problems militated against victim statement schemes.
WORKLOADS AND DELAY
7.13 Generally, procurators fiscal thought that the extra administrative workload created by victim statement schemes was quite heavy, particularly in one office because of the duplication of effort with VIA and the lack of the electronic system which operated in the other 2 offices. The point was made that even where no statement was forthcoming, there were a variety of different systems to be updated. In the 2 offices employing an electronic system, however, the perception was that the additional administrative staff employed to deal with victim statements seemed to be sufficient to deal with the increased workload falling upon these offices (although it was obviously necessary to supervise the additional administrative work which was being done). Nevertheless, procurators fiscal in one of those 2 offices commented that victim statements caused them some extra work which could not be delegated to the new administrative staff. They had to remember this possibility while marking cases and also read any victim statement which was returned. On the other hand, procurators fiscal from the other of those 2 offices did not think that victim statements were causing them much in the way of extra work. At the outset, they had been worried that their office might be inundated with calls from victims but this had not happened. Procurators fiscal from the third office had reached the same view: occasionally victims phoned up but they were simply passed on to VIA.
7.14 The general perception among both sheriffs and procurators fiscal was that victim statements had not caused any delays in dealing with cases nor wasted any significant amount of court time. Sheriffs, in particular, were positive in this regard, 2 commenting that earlier fears about potential delay that might be caused by victim statements had proved unfounded. None of the sheriffs interviewed were of the view that victim statements impacted unfavourably on the efficiency of court business or on their own workload. One sheriff commented, typically, that "I don't find it adds a huge burden to my work."
7.15 All of the procurators fiscal interviewed were of the same view. One commented that there was usually a slight pause in dealing with the case because, once the victim statement was submitted, the defence might want to consult the client and the sheriff would want to read the statement but the delay was never for more than "a few minutes". All respondents were agreed that victim statements did not take long to read and to digest. It was also observed by several respondents that, in the more serious cases, the case would often be adjourned for sentencing anyway and this provided ample opportunity for the defence to familiarise itself with the contents of the victim statement.
7.16 Prior to the implementation of the pilot victim statement schemes, some respondents had been worried by the prospect of having to hold proofs in mitigation (a procedure involving hearing evidence after conviction but before sentence) in order to allow accused persons to dispute the content of victim statements. This would have caused considerable delay in the relevant cases and, if frequent, could have significantly increased the workload of the courts but none of those interviewed were aware of any proofs in mitigation having occurred during the operation of the pilots. As explained below, 115 this was thought in part to reflect the fear that the accused might well receive a heavier sentence if he was perceived to have forced the victim to attend court proceedings of this nature and also the desire of all criminal justice personnel not to prolong cases.
THE INFORMATION PROVIDED
7.17 With the exception of one respondent, who held generally negative views about the scheme, all of the sheriffs interviewed considered that victim statements could be useful in that they did potentially provide the sentencer with more information, particularly of a medical nature, about the impact of the crime upon the victim. One sheriff commented that the victim statement brings a "human flavour" to the case and added that, without it, a sentencer "just had to imagine how awful it would be"; another commented that it brings a guilty plea "more to life" (where the sentencer had not heard evidence at trial). Another respondent thought that this was particularly so in summary cases, where the procurator fiscal (or a precognition officer) does not interview the victim and the police statement is not primarily concerned with the effect on the victim.
7.18 Two sheriffs, from different courts, commented that it had often been their practice even before the implementation of the pilot scheme, and particularly in cases of serious assault, to adjourn sentencing in order that more information could be obtained about the impact of the crime upon the victim. Indeed, one sheriff thought the scheme was entirely unnecessary for this reason. Another cited an example of a 'glassing' case that occurred prior to the pilot schemes where he had asked the procurator fiscal to get further information to ascertain whether all the glass had been removed from the victim's eye. If the glass had been removed, leaving the victim with no lasting effect, in contrast to the situation where permanent irritation was involved, it would have made a significant difference to the sentence, placing it in the region of 2 years' imprisonment compared to 4 years.
7.19 By contrast, one of the other sheriffs interviewed stated that, prior to the implementation of the pilot scheme, he would not have requested or received this type of information and now found it valuable. It was clear from the comments of procurators fiscal that, before the introduction of victim statements, sheriffs in the relevant courts varied in how active they were in asking the prosecution for information about the impact of the crime on the victim.
7.20 One concern that was raised by some respondents (3 of the 11 sheriffs interviewed raised this point) was the accuracy of the information contained in victim statements. 116 One commented:
"What if it's wrong? There's no check on it. I'm not thinking of the extreme case … How can you test it?"
Another commented:
"How could I check it? I couldn't even tell if it was in the victim's handwriting!"
One remembered a case of unlawful sexual intercourse with an under-age girl where 3 girls had gone to the house of a man who was in his mid-twenties. The victim statement gave a completely different account of events to that of the accused but the sheriff was sure that the complainer was deliberately exaggerating and believed the accused.
7.21 For this reason, 2 of the sheriffs interviewed stated that they would find it more acceptable for victim statements to somehow be endorsed by the procurator fiscal and incorporated into their agreed narrative, one stating that:
"I would be happier if it was only shown to you if it was endorsed by the procurator fiscal in some way."
7.22 Likewise, the main concern of defence solicitors interviewed was with the accuracy of the information supplied by victims. Some were worried that no-one checks the information, that victims would exaggerate and that victims might not even write the statements themselves. One solicitor remarked that many of his firm's cases stem from 'family feuds' in small villages and if a member of one family was filling in a victim statement in respect of an assault by a member of the other family, he might "paint as black a picture" of his injuries as he could.
7.23 Procurators fiscal from one office were more positive about the information received in victim statements than procurators fiscal from the other 2 offices, stating that they were "definitely" getting information over and above what would previously have been available. For example, it was observed that in cases involving biting, where all that the procurator fiscal initially knows is that the victim went to hospital, the victim statement had sometimes revealed that the victim had to return for tests and had been warned to be 'careful' with his or her partner for a while (because of the risk of HIV or hepatitis transmission). Procurators fiscal from another office felt that they now got more information on physical and emotional effects but little additional information on financial effects. Procurators fiscal from the third office were less convinced that victim statements provided them with significant new information, mainly because they felt that the police reports submitted to their office were good, particularly in more serious cases.
7.24 Two respondents wondered whether better information would result if victim statements were taken earlier (for example at the same time as the police witness statement) but views on this were mixed. One respondent noted that victims' memories would be better at that stage and liked the English system, whereby the police take the victim statement at the same stage when they take the normal evidential statement to the police. 117 Another respondent commented, however, that the police statement was taken in the aftermath of the crime and sometimes the effects of the crime did not manifest themselves immediately; thus it was better that the victim statement was taken at a later stage. Several other respondents observed that the main benefit of victim statements was precisely that they picked up on longer term effects which would not have manifested themselves at the earlier stages of the investigation.
EFFECT ON SENTENCING AND OTHER DECISIONS
7.25 All of the sheriffs interviewed did say that they would (as the relevant legislation requires them to do) 118 take account of any victim statement received when passing sentence on an offender. This was subject to a caveat: that they must ignore any information contained in the victim statement that is irrelevant to the offence of which the accused has been convicted. 119
7.26 On the subject of whether sentences tend to be more severe in cases where there is a victim statement, the view of all of the sheriffs interviewed was that it was almost impossible to isolate the impact of a victim statement on their sentencing decisions. The existence and content of any victim statement was only one factor that sentencers take into account, alongside matters such as the previous convictions of the offender, any mitigating factors, and so on. One sheriff stated that he "couldn't honestly say" whether or not victim statements had had any effect on the sentences he had imposed. Another commented that it was "impossible to say" whether the victim statement makes any difference to the sentence.
7.27 There were, however, a few examples given to us by respondents where the information contained in the victim statement had either made a difference to the sentence imposed or had caused the sentencer at least to consider the imposition of a different sentence. One sheriff gave the example of a case of theft by housebreaking, which was a summary case, but where the victim statement noted that the items taken had been of sentimental value. This, the sheriff stated, would not normally have involved a custodial sentence, but the victim statement caused him to consider it as an option. He adjourned the case until after lunch but, after the adjournment, the offender revealed that he had the means to compensate the victim, so in the end the sheriff concerned decided to impose a compensation order instead. Another respondent stated that the fact that the victim had listed in the victim statement the value of the items taken in a theft by housebreaking case had prompted him to impose a compensation order. 120
7.28 By contrast, all of the sheriffs and procurators fiscal interviewed who expressed a view on the issue argued very strongly that victim opinion about sentence should not affect the sentence passed and most also commented that, in their opinion, victims should not have a say in sentencing whether through this or any other mechanism. 121
7.29 All of the procurators fiscal interviewed were clear that the information contained in victim statements would - and should - only very rarely affect any of their decisions. It was noted that, in any event, the victim statement is received too late to influence the formulation of the charges or the initial bail decision. One procurator fiscal did cite an example of where the existence of a victim statement, rather than any of the information contained therein, would influence the prosecution process. He observed that at the stage of charge bargaining, if an accused was facing 10 housebreaking charges and was willing to plead guilty to 4 of these in return for the others being dropped, most procurators fiscal would ensure that any charge for which there was a victim statement would be one of the 4 to which a guilty plea would be negotiated. It was, however, clear from discussions with other procurators fiscal that this factor clearly did not always rule out dropping a charge in respect of which there was a victim statement in return for guilty pleas to other charges in relation to which there were no victim statements.
FAIRNESS TO THE ACCUSED
7.30 A major concern about victim statements, which was raised by 3 of the sheriffs interviewed, was that of the risk of prejudice to the accused. These respondents took the view that victim statements were highly problematic in an adversarial system of justice, with its traditional focus on the accused and ensuring that he or she was dealt with appropriately. One sheriff asked rhetorically:
"If you're a 17-year-old boy who goes house-breaking, are you honestly supposed to get a heavier sentence because you happen to break into the house of someone who's vulnerable?"
Another commented that:
"My experience is that if you start overdoing it for victims, you start bringing unfairness to the accused in, and the one cardinal principle we must never lose sight of is fairness to the accused." 122
7.31 There was particular concern about the situation where the victim statement contained information which went beyond the charges of which the accused was convicted or was otherwise irrelevant but potentially prejudicial. As one sheriff stated:
"What is a real problem in law is information that has been held by the prosecutor not to have happened."
7.32 At least 2 of the sheriffs had experience of such cases, both involving sexual offences, where the information relating to the conduct of the accused which was contained in the victim statement indicated that this was not confined to the charges of which he was eventually convicted. In each case, the sheriff had felt that there was no alternative but to ignore the victim statement completely for fear of prejudicing the position of the accused in the process of sentencing.
7.33 For instance, one case involved the sexual assault of a woman by a relative some twenty years ago when she was under the age of consent. It was at the 'lower end of the spectrum' and hence was being prosecuted in the Sheriff Court but the victim statement revealed a long history of sexual relations between the victim and the accused, which had involved the victim giving birth to the accused's child at some stage. Further, the victim expressed a view that there was little point in sending the accused to prison. The sheriff decided simply to ignore the victim statement because it went well beyond the charges and thus it would be entirely inappropriate to take the information in it into account. As a result of these concerns about the risks to the accused posed by victim statements, at least 2 of the sheriffs interviewed remain opposed to them.
7.34 There was also concern among sheriffs about cases where a plea had been negotiated between the Crown and the defence, that is, where the prosecution had dropped or amended some of the charges in return for a guilty plea on others. One sheriff described a "troubling" case where an offender had pled guilty at an early stage to the statutory offence of unlawful sexual intercourse with a girl under 16, which covers the situation where the intercourse is consensual but unlawful because of the girl's age. The victim statement described a rape, with the victim recounting the trauma involved and its subsequent psychological impact on her. The agreed narrative of the offence, recounted in court by the prosecution, bore no relationship to this account of a forcible rape. The sheriff asked the defence agent if he wished to comment on this second scenario but the latter simply commented that it reflected something quite different from the agreed account. In sentencing, in order to avoid any impression that the accused might have been prejudiced by the victim statement, the sheriff stated quite clearly that he had not been influenced by the victim statement. 123
7.35 Another similar case, described to us by both a procurator fiscal and the defence agent, led to a devolution minute (a challenge based on the accused's rights under the European Convention on Human Rights) being raised and rejected. The charge had originally contained a sexual element which had been deleted but the victim statement contained significant detail of this sexual element, as well as a lot of background information about the relationship between the parties and various other allegations against the accused. The sheriff had not wanted to accept the victim statement but the prosecution's view was that they had no discretion either to edit it or withhold it from the court. After debate on the devolution minute, the sheriff took the unedited statement and made it clear in open court that he had disregarded the irrelevant parts. A copy of the opinion issued by the sheriff (with the names of the complainer and accused anonymised) in that case is included in this report at Annex 10.
7.36 The defence agent who informed us of the case (it was not his own case, but one with which he was familiar) considered this course of action to have been appropriate. At this stage, it should be noted that procurators fiscal made the point that it is entirely legitimate to withhold a victim statement where the charge has been dropped altogether or the accused has been found not guilty on that charge. Those are, of course, different situations from that described above, where the statements are still relevant, although they go beyond what is appropriate. One sheriff was convinced that procurators fiscal did not always show him victim statements even where they were relevant but he appeared to be alone in coming to this conclusion.
7.37 The view that the victim statement scheme raised issues of fairness to the accused was not universally held; in fact 3 sheriffs specifically stated that they did not think this was a concern. One commented:
"I've never been convinced by the argument that the thing in principle is unfair to the accused."
7.38 In any case, the unanimous view of all of the sheriffs interviewed, including those who raised concerns about fairness to the accused, was that in cases where the victim statement contained irrelevant or prejudicial information, they would be able to put it out of their mind and disregard it when it came to passing sentence. One commented that "a judge is perfectly capable of putting irrelevant material out of his mind". Another stated that: "I don't mind irrelevant information in some respects … I find I can filter that out."
7.39 The majority of procurators fiscal and defence agents interviewed agreed that, by and large, sheriffs seemed well able to disregard any irrelevant information. The point was made that they are well accustomed to doing this in summary cases as regards evidence found to be inadmissible. One defence agent, however, thought that while most sheriffs were capable of this compartmentalisation of thinking, not all of them would be able to put the irrelevant information out of their minds. In addition, one of the procurators fiscal interviewed stated that he had come across "a couple of maverick sheriffs" who took the view that statements which contained irrelevant information were worthless and would entirely disregard them; 124 most, however, would simply disregard the irrelevant parts.
7.40 In principle, some sheriffs were worried by the difficulties an accused would face if seeking to challenge the information contained in a victim statement, but those interviewed did not cite any examples where this had manifested itself in practice.
7.41 A procurator fiscal told us of a case involving a domestic assault where the victim statement revealed a long history of abuse (including a breach of bail conditions not to make contact with the victim). The defence initially wanted a proof in mitigation, primarily because the accused denied harassing the victim by sending her text messages, but eventually the depute and defence were able to agree the facts and avoid this step. Procurators fiscal generally thought that challenging a statement was a high risk strategy for the defence because forcing the victim to come to give evidence might result in a heavier sentence. Some sheriffs also made this point and, in the view of those respondents who expressed an opinion, it is one of the main reasons why there have been no proofs in mitigation. This explanation is consistent with the findings of research into victim statement schemes in other jurisdictions (see Erez and Rogers, 1999; Sanders, 1999). The defence solicitors interviewed further explained that it was in all the professionals' interest to process cases as quickly as possible: the Crown was under pressure, sheriffs had no wish to prolong cases, and defence solicitors would not get paid for the extra court appearance entailed. Thus, none of the legal players wanted to become bogged down with proofs in mitigation.
THE FORMAT OF THE SCHEME
7.42 Aside from the comments about the format of the scheme already noted, 125 respondents were asked specifically whether or not any victim statement made should be read out in open court at the stage of sentencing, either by victims themselves or by someone else. The universal response was that this would be a bad idea and that, in the interests of fairness, the present system of putting the information contained in the victim statement before the court was correct. There was concern that the press might well be present and the accused's position might be prejudiced if the victim's testimony went beyond the charges. Similarly, if the procurator fiscal was reading out the statement, he would have to edit it as he went along. As one of those interviewed stated:
"I think it's a minefield … we would have to have some form of editing and add a lot of procedures on."
7.43 Another respondent commented that victims themselves might well find it stressful to read out their statement in court.
THE FUTURE
7.44 The majority of sheriffs, procurators fiscal and defence agents interviewed were neutral about whether or not the victim statement scheme should be rolled out across Scotland following the pilots. Few expressed any strong views either for or against a full roll out. A typical comment, made by one of the sheriffs interviewed, was:
"I don't actively object to the principle. The place of the victim in general terms has been obscured until recently. Whether this is the right model or not I have no idea but I don't actually object to it."
7.45 A minority of those interviewed did express strong views about an eventual roll out. 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. By contrast, 2 of the sheriffs interviewed were strongly against rolling out the pilot scheme.
7.46 Some of the respondents did, however, express a degree of scepticism about the reasons for implementing the pilot schemes, 3 in particular observing that, in their opinion, it had been done largely for political reasons. These respondents felt that politicians were continually seeking to make political capital out of the criminal justice system. One commented that, in his view, there were far too many initiatives stemming from the Scottish Executive, most of which were politically driven and not properly thought through. This respondent described the victim statement schemes as "hare-brained"; another described them as a "political gambit". Defence solicitors were particularly cynical about victim statements, perceiving them to be a political ploy which no-one in the criminal justice system wanted. An experienced defence solicitor commented that the scheme was "a bit gimmicky" and thus no-one was very enthusiastic about it. In his view, it was simply a "sop" to victims to "make victims feel as if they're involved in the process".
7.47 Another respondent commented that the perception in his area was that victim statements had only a marginal impact on sentence and no practitioner had seen a "sheriff do more than pay lip-service to them". On the other hand, one sheriff felt very strongly that the criminal justice system had to maintain public confidence and that rightfully acknowledging the victim's position would contribute to this. He and another respondent both argued forcefully that, given the traditional concentration of resources on the accused, the criminal justice system must do more - and be seen to do more - for victims.
7.48 As described above, however, the 2 sheriffs who were particularly unenthusiastic about victim statement schemes were primarily concerned that their introduction - and possible expansion - risked prejudicing the traditional fairness of Scottish criminal procedure to the accused. One commented:
"I still don't like them. I don't think we should have them. I didn't think we should have them before and nothing's happened to change my mind."
He continued:
"We cannot satisfy both the victim and the accused at the same time … I think victims should understand that they're not the primary consideration of the court."
7.49 Worries were also expressed by several respondents that the schemes would raise victims' expectations that their statement would have an impact on the outcome of the case when, in reality, it would have little or no effect.
7.50 One procurator fiscal made precisely this point specifically as regards financial losses and cited the victim statement of an elderly housebreaking victim which listed all such losses. 126 There was no hope of compensation being awarded by the court because the offender was an unemployed drug user, thus the victim would inevitably have been disappointed. Other respondents (primarily from victim support organisations) commented that some victims had an expectation that their statements would be read out in court and were disappointed when this did not happen. One procurator fiscal told us that in several cases, a charge in respect of which there was a victim statement had been dropped as part of the charge bargaining process and in another very serious case, the jury returned a not proven verdict. 127 Obviously, the risk of disappointing victims might be particularly acute in such cases.
7.51 A number of respondents also expressed the view that the victim statement scheme was a waste of resources because of the low number of statements returned. One sheriff commented:
"I don't feel it's something so obviously important and significant that it ought to be rolled out if the figure is so low."
Another respondent (a procurator fiscal) stated that:
"I think [the scheme is] a waste of time personally… The amount of work for the amount of statements you get back is a waste of resources, quite frankly. In most summary cases where there is any dispute as to the facts, the victim would give evidence at trial and their story would come out; in solemn cases you would get their side of the story when they're precognosed."
Some defence solicitors observed that the money spent on victim statement schemes would have been better spent on alleviating the shortage of Crown resources.
7.52 It was suggested by one of those interviewed that while he would support greater involvement by victims in the criminal justice scheme, it was not necessary to have the expense of a formal victim statement scheme in order to achieve this. A similar effect could be achieved, in his opinion, by simply letting victims know that they are welcome to send a letter to the procurator fiscal letting them know how the crime has affected them.
7.53 On the other hand, one procurator fiscal observed that he occasionally received extremely useful statements, and cited an example of a commercial housebreaking where the statement revealed that the offence had upset the elderly owner of the shop so badly that he had simply closed it down. One respondent generally favoured rolling out victim statements because they allow victims to be involved "albeit not in an earth shattering way".
7.54 One sheriff, who was convinced of the value of victim statements, commented:
"I've always taken the view that the court exists for the benefit of the public. An important player is the accused; another is the person who has suffered."
Another thought that, while victim statements were not working particularly well, they had potential if the schemes were "refined" or "tweaked". He firmly believed that the criminal justice system should take more account of victims and that the "dinosaurs" among his colleagues who were opposed to such developments were slowly retiring. Another sheriff, who had no strong views one way or the other, pointed out that, given victim statements had not caused the anticipated problems and increased court workloads, extending victim statement schemes would not cause any harm and might be of some limited value. One member of VSS, interviewed midway through the pilots, stated that he was "still optimistic" and that the victim statements initiative was "a fantastic scheme and will work once it gets off the ground".
7.55 To summarise, it would be fair to say that the majority of those interviewed held no strong views either way about whether or not the victim statement scheme should be rolled out across Scotland. As noted above, the exceptions to this were those interviewed from victim support organisations, procurators fiscal at one of the pilot offices and 2 of the sheriffs, who were strongly in favour of roll out; and 2 of the sheriffs interviewed, who were strongly against.
7.56 Those who were against roll out (as well as some of those who were simply neutral) expressed 2 main concerns about the scheme: the issue of fairness to the accused when there was no check on the type of information that could be included in the victim statement; and whether or not the scheme represented value for money, given the low response rate. Concerns were also expressed about whether the scheme unduly raises victim expectations about the influence their statement will have.
7.57 Those who expressed opinions strongly in favour of roll out all did so because they felt that the criminal justice system should do more for victims and the statement scheme was a way in which this could be achieved.
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