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19. Victim Statements
19.1 Victim statements were introduced into the Scottish criminal justice system by section 14 of the Criminal Justice (Scotland) Act 2003. Over the two years to November 2005, a pilot of the Victim Notification Scheme was run in the sheriff courts of Ayr, Edinburgh and Kilmarnock and the High Court of Justiciary sitting at Edinburgh and Kilmarnock. Its results and conclusions are being analysed by the Scottish Executive to consider whether, and to what extent, the scheme should be extended. For that reason, I think it is important that I give consideration to their disclosure within the disclosure process I am recommending.
19.2 In essence, where the procurator fiscal in one of the pilot areas raised court proceedings in respect of a prescribed offence 35, then the victim of the offence was invited to make a "victim statement", by completing a form as per the sample attached at Annex 12. The primary purpose of the victim statement was to afford a victim the opportunity to make a statement as to the way in which, and the degree to which, that offence had affected, or continued to affect, them. Where the victim completed the form, then the prosecutor would place this before the court at the stage of moving for sentence in solemn cases and at the stage the plea of guilty was tendered in summary cases.
19.3 For solemn cases, recognising the requirements in Sinclair, I have recommended a process of disclosure of all witness statements for witnesses that the Crown intends to lead at trial. It stands to reason, that this would, in normal circumstances, include statements by the victim of the offence. The question must then be asked, whether the new "victim statements" should fall within this disclosure system, given that the prosecutor will be in possession of this victim statement in advance of any trial.
19.4 However, victim statements are not the same as statements gathered by the prosecuting authorities as part of the investigation. Their purpose is not investigatory, but instead focussed on the effect of the crime on the victim. Accordingly, I do not consider it necessary, or appropriate, that victim statements be routinely disclosed. In coming to this conclusion, I also recognise that the victim may be more reluctant to provide such a statement if such statements were routinely disclosed.
19.5 It is essential, however, that COPFS carefully consider any such statements obtained in order to ascertain that the statement does not contain any material evidence that would tend to exculpate the accused, either by undermining the Crown case or materially assisting the defence case. An example would be where an accused is being prosecuted for an assault involving permanent impairment but it is clear from the victim statement that there is no such permanent impairment. As I later state in relation to precognitions, I see no need for disclosure of such information to be by way of disclosure of the full victim statement. The COPFS should, however, provide written details of the information from the victim statement that tends to exculpate the accused.
19.6 The same principles would also apply in summary cases.
19.7 I therefore recommend that victim statements should not be disclosed as part of routine advance disclosure of witness statements; but where the victim statement does contain material that would tend to exculpate the accused, the COPFS must provide the defence with written details of that material. This need not take the form of providing the defence with a copy of the statement.
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