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Feasibility Study for a victim and witness support service in Scotland

3 Current services for victims and witnesses

3.1 Pre-Trial and Post-Trial

Physical protection and security

3.1.1 To ensure that victims and witnesses are able to provide evidence in court, their physical safety and freedom from intimidation, are of paramount importance. Responsibility for their protection falls mainly within the remit of the police, but may also be the responsibility of court security officers. A full time specialist witness protection unit has been established in Strathclyde Police Force on a pilot basis, and this provides advice and support to other forces. Full protection can involve re-housing, relocation in a new area, and a complete break with all old ties. Such extreme measures are very difficult and expensive to provide, and are offered only in the most serious cases, and only then if the witness is able to accept the disruption to their personal life which is entailed.

3.1.2 In general, the police appear to be effective in responding to specific reports of threats to victims or witnesses, in instances where they can offer immediate protection of a relatively short term nature. However, the research suggests that the protection the police currently provide to victims and witnesses, where the threat is perhaps less explicit, or is in a domestic setting, may not always be perceived to be adequate by the victim or witness concerned. Many victims of domestic abuse continue to feel very intimidated, and feel that the police have not done enough to protect them, though in practice the issue can be one of access to wider service provision beyond the control of the police. Victims of domestic abuse, for example, having sought temporary sanctuary at a Women's Aid refuge, may need to be re-housed, a responsibility which may lie with the local housing authority.

3.1.3 Some victims also report instances of a convicted offender continuing to contact them from prison. The Scottish Prison Service has measures in place to reduce the opportunity for prison inmates to write offensive letters or to make offensive telephone calls to their victim, or to witnesses involved in the case. The instances reported by victims suggest that more could be done to prevent this type of unwelcome contact continuing, particularly from youth detention centres or from people held on remand.

Information

3.1.4 Victims and witnesses need information at all stages in their involvement in the criminal justice process. In the pre- and post-trial stages, these requirements include:

• general information about the criminal justice process, and the victim’s or witness’s involvement in it;

• specific information about the progress of the case - whether the accused is in custody or on bail, how he has pled, how the case will be prosecuted;

• sources of support, assistance and counselling, where these are needed;

• specific information about the perpetrator after sentence - for example, whether he is in custody, when he will be released, licence conditions applying to his release.

3.1.5 Considerable progress has been made in recent years to provide better information to victims and witnesses, but the view of those we interviewed in the study clearly highlighted that there are still gaps - where individual victims or witnesses experience a lack of adequate or appropriate information at key stages.

Information about the process

3.1.6 It is very important to recognise that many victims (particularly those involved in the criminal justice system for the first time) have little knowledge or understanding of Scottish criminal justice process. They know little of their potential role in the process. They have very little concept of what to expect. In addition, the criminal justice system is shrouded in legal terms, and unusual use of language - which lay people generally find difficult to understand, and which tends to exclude them from the process.

3.1.7 The Scottish Executive Victim Steering Group recently produced and launched the "Reporting a Crime" leaflet, designed to be given out by police to all those reporting a crime. In addition, "Being a Witness" information sheets are now routinely sent out by the Procurator Fiscal with citations to adults and are available in the main community languages. Special leaflets are available for children and for adults with learning difficulties. Members of the Fiscal Service take the opportunity provided by precognition, and by pre-trial court visits, when these occur, to give victims and witnesses some information about the criminal justice process, and to answer questions. Inevitably, however, there is variation in the time and effort which Fiscal staff are able to put into this contact.

3.1.8 The leaflets that are currently available do go some way towards assisting victims and witnesses, but they are not in themselves enough. All leaflets should use clear language, appropriate for their intended audience, be presented in a lively, attractive format. In addition, a wider range of leaflets would be useful - providing more information, in a more accessible form, in more accessible locations such as libraries and schools, and targeting a broader range of the community, and in particular those in ethnic minorities and those with particular needs.

Information about the case

3.1.9 The Fiscal Service has a policy of responding courteously and promptly to requests for information. Within the constraints of time and resources available to them, our research would suggest that in most cases members of the Fiscal Service endeavour to do this, though there are very practical difficulties in dealing with telephone enquiries - particularly to ascertain the identity of the caller. Because of these practical difficulties, some interviewees were left with a feeling in some instances that Fiscals are reluctant to receive telephone enquiries, and can appear to be quite dismissive of victims ringing to ask for information.

3.1.10 The established practice is that Procurators Fiscal will provide general information about the progress of a case, but will not divulge or discuss the reasons for any decisions taken. There are good reasons for this; for example, a decision by a Fiscal may be based on reports or statements which are confidential, and to disclose the reasons would be tantamount to exposing the persons involved to a form of public trial without their having been given an opportunity to defend themselves or to explain their position. It is accepted that it is appropriate for Fiscals to give an idea of the kinds of reasons why a particular decision has been made, even if they cannot go into the specific details. However, victims of crime may not always fully appreciate the reasons behind the accepted practice, and may find it hard to understand, or accept; Some of those interviewed reported that it can give rise to an impression of remoteness and even arrogance on the part of the Fiscal Service. This current research indicates that Fiscals are already making steps towards at least giving an idea of the kinds of reasons why they might have made a particular decision, even if they cannot go into specific detail.

3.1.11 A particular area of need, identified by some of the fiscals interviewed and by some of the domestic abuse victims, relates to the needs of those victims of domestic abuse who decide they would prefer the case not to be pursued. Not only is it necessary to ensure that this is really the woman's own opinion (rather than the result of her partner pressurising her), but it is also necessary to ensure that it really is in the best interests of the victim and of the public to pursue the case. Although Fiscal staff may either meet the woman herself, or request a police officer to do so, it is not the Fiscal’s responsibility, nor is the Fiscal equipped, to attempt to become involved as a surrogate social worker or counsellor in such cases. What the example highlights is the need for the Fiscal to be aware of the needs of different people and to respond appropriately to these, perhaps seeking input from other sources as necessary. Victims and witnesses from ethnic minorities can pose particular challenges in understanding the cultural backgrounds which may impact on the ability, or preparedness, of a victim or witness to given information.

Information on sources of support

3.1.12 Procurators Fiscal and precognition staff may sometimes provide victims with contact addresses of appropriate support agencies, but this varies in extent and in the awareness of local staff. Victims and witnesses may not be referred to the particular support agency best suited to their needs. Police officers will usually provide details of local support agencies in the more serious cases, but the extent to which this is done varies in extent overall. Currently, it would appear that the criminal justice agencies are not always routinely providing basic contact details about voluntary organisations able to provide support, nor are they necessarily able to identify the most appropriate agency for a particular individual’s needs. There is currently no readily accessible, widely publicised, single point of contact for obtaining such information.

Status of offender after sentence

3.1.13 A Victim Notification Scheme was introduced in 1997. This offers victims of the more serious crimes, in which an offender has been sentenced to 4 years or more, the opportunity to be advised by the Scottish Prison Service when the perpetrator is released into the community.

3.1.14 The research in this study suggests that take-up of the Victim Notification Scheme has been limited. Since the scheme involves notifying victims only of the final release, not of release for home leave, release for college, or escape, the value of the scheme may be considered by the victims involved to be limited, and this may account for the low take-up.

Handover between agencies

3.1.15 From the victim’s perspective, handover between agencies needs to be smoother. At the point of handover between the police and the Fiscal, for example, a victim may find out that the case has been reported to the Fiscal only when they try to contact their Reporting Officer in the police force for information; they will then be told that they should now contact the Fiscal. Once a case is reported to the Fiscal, current policy can in the best examples result in the Fiscal Service sending regular letters to victims (or the families of murder victims) to keep them informed of the progress of the case, frequent telephone contact with the victim, or with a supporter such as a social worker or psychiatrist, and sometimes face-to-face contact. However, this level of service is not always achieved.

3.1.16 The police commented on the frustration they sometimes feel when they refer a case to the Fiscal having worked with victims and witnesses over the period of an investigation, and having established a good, supportive relationship. The police may experience difficulty in obtaining information on the progress of the case after handover, and are unable as a result to respond to queries from the victims and witnesses who still approach them.

Emotional Support and Counselling

3.1.17 The provision of emotional support, counselling and therapy for the victims of crime is not the responsibility of Criminal Justice agencies other than (in some limited instances) Social Work. The role of the criminal justice agencies has been limited to providing information about, and in some cases, referrals to, external groups which can provide the services required. For some years, police forces have routinely referred many victims to Victim Support Scotland (VSS), and social work staff will routinely be consulted by police in cases involving suspected child abuse, neglect and similar cases, or where an existing social work involvement may have been identified.

3.1.18 Victim Support Scotland (VSS) is an independent voluntary organisation, supported financially from central government, which can provide help to victims whether or not the crime has been reported to the police. VSS is widely regarded as providing a much needed service, which begins with the assessment of the victim's needs, and extends to providing the opportunity to talk, giving emotional support, providing general information and assisting victims in getting information about their own case. VSS volunteers also give practical support and will refer victims or witnesses to other agencies and voluntary organisations, including Rape Crisis and Women's Aid.

3.1.19 In addition to VSS itself, the Scottish Executive is funding a new service operated by VSS and offering a distinct and complimentary service. This new service, the Witness Service, is currently being introduced to courts throughout Scotland. The Witness Service will provide a service to all witnesses attending court, ranging from basic welcoming and escorting to the waiting areas, to providing some degree of emotional support, information, and a listening ear to those who need it. The decision to fund the Witness Service was taken following a successful pilot in three Sheriff Courts.

3.1.20 There are numerous other voluntary organisations which offer support and assistance to victims of crime. Some of these specialise in particular types of crime, and some specialise in their victim profile. These organisations have a wealth of experience in their own fields, and provide services such as telephone help-lines, drop-in centres, face-to-face work, and group work. However, there is a general lack of funding for these specialist organisations, some of which have lengthy waiting lists, and do not always have enough resources available to provide the full range of support services. The task of accompanying victims to court, which is a service offered by most of the organisations, is particularly resource intensive, and therefore hard to cater for.

3.1.21 The service offered by these organisations is necessarily limited by the resources available, and this is reflected in the feedback from many victims in the current research study, who indicated that they had felt a need for more support than they actually received.

3.1.22 Members of ethnic minorities, and people from other cultural backgrounds, have special requirements for support; for example, for protection in abuse cases, especially in situations where, by leaving their husbands, women may have no support from their own families or community. The support needed is often very long term and expensive.

Courtesy, respect and sensitivity

3.1.23 Charter Statements either implicitly or explicitly include the expectation that staff of the criminal justice agencies will treat victims and witnesses of crime courteously, sensitively and appropriately to their need. The research undertaken in this study suggests that this expectation is generally met, but that there are still some gaps in the service provision.

3.1.24 The work of the specialist police officers who deal with victims of child abuse and rape, for example, was spoken of very highly in the study, but there was some concern that the generalist police officer on the beat is not always as sympathetic or understanding in dealing with rape or domestic abuse as those who have received the specialist training.

3.1.25 Other areas identified include:

• evidence that some defence precognition agents do not always display appropriate empathy, tact or sensitivity towards the victim or witness;

• reports that the Criminal Injuries Compensation Authority can treat victims of serious crime insensitively, and dismissively, particularly when victims contact the Authority over the telephone;

• a concern amongst domestic abuse victims that parental access is given to the father, who can then use this to ascertain the whereabouts of the partner.

3.1.26 The small size of the research sample in the current study does limit the extent to which these points can be taken as representative, though in each of the points listed above, there was corroborative evidence from a variety of sources to support the conclusions being drawn.

Physical need

3.1.27 Victims and witnesses may find it difficult to attend court, or to give evidence, as a result of a variety of physical disabilities, hearing or sight impairment, through English not being their first language, or as a result of differing cultural backgrounds. Some of the needs that these generate can be difficult to meet - for example, many of the older court buildings were not designed to facilitate access by wheelchairs (though modernisation programmes are tackling this), and the acoustics in some courtrooms can be far from ideal, even for fully hearing people. Tackling problems of language and culture can be difficult, since the impact can often be intangible, and only those trained to be sensitive to the issues will necessarily detect the impact of these issues on the ability to participate in the criminal justice process and to give evidence.

3.2 The day(s) immediately prior to, and at, Court

Physical protection and security

3.2.1 The research in this study suggests that while police officers attending court to give evidence are used to help maintain order in some courts, this is by no means always the case. Some witnesses may feel intimidated simply by the presence of the "fairly frightening and formidable looking people" found in court buildings (which can include other court users as well as the formally-attired court staff) others suffer deliberate attempts at intimidation by the accused or his associates, and the research included one victim who was attacked by the accused in the public area at court. Clearly, the levels of protection provided for victims and witnesses in court are not always adequate. The Witness Service, currently being introduced to Sheriff Courts throughout Scotland, may go some way towards reducing these anxieties and actual incidents but the underlying need for effective policing of the court area will remain.

Information

3.2.2 The need for information in the period immediately leading up to the trial, and at the court on the day of the trial was one of the most strongly voiced of the needs mentioned by victims and witnesses - and is the central theme of the Lord Advocate’s proposal.

3.2.3 There is a clear policy by the Courts and Fiscal Service to keep witnesses informed of progress during the day of the trial, and to advise of such things as when to take a lunch break, and when a witness can leave the court building. There is an expectation that witnesses will be informed at two hourly intervals about the expected time for them to give evidence, and about the progress of the cases being heard.

3.2.4 The research in this study (which looked at only four Sheriff Courts - two large, one of medium size and one small) suggests that, while in some instances every effort is made to ensure that information is provided to waiting witnesses at regular intervals, it is not always possible to achieve this consistently or at every location. The two hour rule is often not implemented in practice. It is also questionable whether two hours is not itself too long a period for people to be left uninformed.

3.2.5 In practice, the Fiscal, or advocate depute, prosecuting a case frequently has little or no contact with the victim, or with other witnesses during their time in court. There are sound legal reasons for this, which are clear to the Fiscals and Crown Counsel involved, but less so to the victims or witnesses. The key issue, which many victims and witnesses may not fully appreciate, is that the Crown Office prosecutes cases on behalf of the state, acting in the public interest; they do not prosecute on behalf of the victim. Prosecutors are, for legal reasons, restricted in the extent to which they can communicate with Crown witnesses once a trial has commenced. The principle of fairness to the accused requires that once a witness has begun giving evidence, it would be improper to speak to him or her outwith the courtroom, unless the accused’s legal representative was present, or concurred, otherwise this could jeopardise the case. However, the research revealed that within very tight constraints, some Fiscals and advocates depute make an exception to this by introducing themselves to children (and one judge reported similarly that he would make a point of making contact), and of talking to other witnesses who are particularly vulnerable or distressed, before the commencement of the trial. Unfortunately, to victims and witnesses who are not contacted, this can give an impression of arrogance or rudeness.

3.2.6 Overall, while at court, victims and witnesses could with benefit be provided with more information, either about the criminal justice process itself, legal points, rules of evidence etc, or about the progress of the trial, or trials, on the day.

Emotional and counselling support

3.2.7 The extent to which victim and witness needs can be met at court depends critically on how effectively their needs are identified and assessed, and the details communicated to those who can provide the required service. In the case of summary proceedings, both the court and the Fiscal Service are dependent on police reports for this information. However, precognition, in solemn cases, provides an additional opportunity for the Fiscal, or precognition officer, to assess need.

3.2.8 The research in this study suggests that although police reports do usually provide details of obvious vulnerabilities, such as if a witness is blind, requires a wheelchair, or does not speak English, there can be instances in which such vital information is omitted. Examples of such instances were provided by a number of the interviewees in the study, and one was observed directly by the researchers during a trial.

3.2.9 In addition to Fiscal staff reporting omissions in police reports, some court staff reported that the Fiscal Service does not always keep either the Court, or the judiciary, informed of witnesses' special needs. (This may simply reflect the fact that the Fiscal has not been informed of special needs, but this fact would not be known to the court staff.)

3.2.10 The provision of emotional support to victims and witnesses is generally provided by the various specialist voluntary organisations; as the Witness Service is implemented throughout Scotland, the availability of volunteer resources will increase, and more victims and witnesses will benefit from the support they can offer. More vulnerable victims and witnesses, and those with special needs such as mental illness or learning difficulties tend to be supported by their own carer or professional support staff. The Appropriate Adult scheme is available to support victims of crime, but is used only rarely for victims and witnesses with mental illness, despite being used for accused people. If an Appropriate Adult is required, the police should request their assistance for interview. That information should then be passed on to the Fiscal.

3.2.11 Edinburgh High Court's Social Work service adopts a proactive approach to identifying victims and witnesses who may have particular needs, and hence routinely identifies needs not previously identified by either the police or Fiscal Service.

3.2.12 While the extent to which the needs of victims and witnesses while attending court are identified varies, the research in this study suggests that there is also variability in the extent to which needs which have been identified are then met. The decision to take steps to meet particular needs depends on the need being identified, appropriate application being made to the court for the needs to be met (in specific instances, such as for the use of CCTV or screens in court), on the court agreeing to the action, and on the necessary actions being taken to meet the need.

3.2.13 The research in this study suggests that the volunteer-based victim and witness support organisations - Victim Support Scotland, the Witness Service, and other voluntary agencies - as well as Edinburgh High Court social work service are generally well regarded by victims and witnesses, and that they are generally much appreciated. However, only a relatively small proportion of victims or witnesses currently come into contact with these services (though this will change as the Witness Service becomes available throughout Scotland), and the feedback from the victims and witnesses in the research study, and from local organisers of the voluntary organisations emphasises the importance of effective screening of volunteers and of standards for training and support for the volunteers.

Physical need

3.2.14 Relatively simple measures to provide transport, or secure means of access to the court building would greatly facilitate the attendance at court by victims and witnesses - particularly to provide transport to court for vulnerable or intimidated witnesses, or an escort into court, possibly through a side door to avoid contact with the accused. Some examples were given of these services being provided, but there was also some evidence of victims or witnesses feeling that their needs were not being met.

3.2.15 Some victims and witnesses also expressed their personal need to continue to attend the trial after they had given evidence, and suggested that this would be assisted by the extension of the current system of paying expenses to include such additional attendance at court, applicable particularly to victims of serious crimes and bereaved next of kin. For victims, sitting through the remainder of the trial can be an important part of "closing off" the experience of the crime from their lives.

3.2.16 Keeping witnesses’ waiting time to a minimum, and providing opportunities for waiting away from court can assist greatly in making the experience less stressful. The standard guidance documents make reference to the need to ensure that witnesses at Court who are no longer required to give evidence are released as soon as possible and provided with an explanation for their release. The research in this study suggests that in practice considerable efforts are made to minimise waiting times, but that this is not always recognised by the witnesses, and, in the larger courts in particular, it is not always possible.

Comfort at Court

3.2.17 Good, clean waiting facilities in court are important for victims and witnesses. The research identified opportunities to improve the facilities currently offered - to ensure, for example, that both prosecution and defence witnesses have comparably equipped waiting areas, with comfortable seating, access to reading materials, access to refreshment facilities and clean toilets, facilities for children, and that prosecution and defence witnesses are not required to share communal facilities. Separate facilities for intimidated witnesses, or for victims of abuse or rape are also important.

3.2.18 Some courts have separate waiting rooms for victims or witnesses who feel particularly vulnerable or intimidated, which are well away from public areas, or which can be locked for the occupants’ safety. These are greatly appreciated, but there is scope to offer them more readily to witnesses who might need them, and to ensure that they are equipped appropriately - with reading materials and refreshment facilities.

Representation and the opportunity to input to the process

3.2.19 The Scottish criminal justice system is based on the principle that criminal offences are committed against the state, and that the role of the independent prosecutor, representing the public interest, stands in place of the victim. The emphasis is therefore upon the victim’s role as witness and the evidence that he/she gives. Thus the role of the victim is in giving statements to the police, in precognition, and direct evidence in court, with no direct input to the decision-making processes.

3.2.20 Although victims do not have direct means of input into the criminal justice process, this current study suggests that in practice, Fiscals do expect information about the impact of the crime on the victim, and will request information if it is not provided. This information is then used at various points in the criminal justice process - including in deciding whether to oppose bail, and is presented to the court during trial, often with the victim being invited by the prosecutor to describe the impact of the crime as part of their evidence. However, if the accused pleads guilty to the charges before him, there is no opportunity for the victim directly to describe the impact; instead, the prosecutor will recount details of the impact as reported by the victim.

3.2.21 The issue of being able to make a direct input into the system, particularly at trial, is one which some victims, and the bereaved families of murder victims, feel strongly about. But the issue, in terms of being a victim need, is different from those described earlier in this section; it would require a significant change in the criminal justice system in Scotland to accommodate the opportunities for direct input to the prosecution process by victims. It is raising issues which are outside the terms of the current study, but which are nevertheless important. Consideration is being given to the introduction of some form of victim impact statement in Scotland, and the findings of this current research would tend to support the need for such a change.

3.3 Summary

3.3.1 The various initiatives introduced in the past 10 years have set out to address some of the most pressing needs of victims and witnesses. This has resulted in a complex picture of policy statements, initiatives and projects on the one hand, and an experience in practice which is less complete, and variable around the country. The consistent implementation of current policies thoroughly across all organisations involved in the criminal justice process, combined with the Lord Advocate’s recommendations, would go much of the way towards meeting the needs of victims and witnesses.

3.3.2 In some respects, differences in the provision of services to victims and witnesses relate to the size (and hence volume) of the court. For some, bigger is better - the largest Sheriff Courts can provide restaurant and child care facilities, for example, and in general, the signing in these courts is clear. But on the other hand, some aspects of the service to victims and witnesses are better in the smaller courts. The smaller court generally allows more opportunity for the Fiscal to make contact with witnesses during the day of the trial, and for there to be more opportunity for the Fiscal and the local defence agents to have established good professional relationships. The smaller courts also tend to be less intimidating to the victims/witnesses.

3.3.3 The difference between policy and practice, however, is not the only reason for victim and witness needs not being met. Rather, it would appear that some of the current policy and guidelines have too limited a scope, or apply to too limited a target group, to fully meet needs. Finally, some of the needs identified appear not to be covered by any of the existing guidelines. Our recommendations therefore include measures to help ensure that existing policy is fully implemented, and that awareness training on victim and witness issues continues to be offered, as well as some suggestions for extending policy and guidelines.

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