21st Report, 2015 (Session 4): Subordinate Legislation

SP Paper 856 (Web)

Contents

Introduction
Victims’ Rights (Scotland) Regulations 2015 (draft)

The draft instrument
Scrutiny by the Delegated Powers and Law Reform Committee
Justice Committee consideration
Recommendation

Justice of the Peace Courts (Special Measures) (Scotland) Order 2015 (Draft)

The draft instrument
Scrutiny by the Delegated Powers and Law Reform Committee
Justice Committee consideration
Recommendation

Remit and membership

Remit:

To consider and report on:
a) the administration of criminal and civil justice, community safety and other matters falling within the responsibility of the Cabinet Secretary for Justice; and
b) the functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Membership:

Christine Grahame (Convener)
Elaine Murray (Deputy Convener)
Christian Allard
Roderick Campbell
John Finnie
Margaret McDougall
Alison McInnes
Margaret Mitchell
Gil Paterson

Subordinate Legislation

Introduction

The Committee reports to the Parliament as follows—

1. At its meeting on 8 December 2015 the Committee considered the following instruments—

The Victims’ Rights (Scotland) Regulations 2015 (draft), and

The Justice of the Peace Courts (Special Measures) (Scotland) Order 2015 (draft)

2. The instruments were referred to the Justice Committee as lead committee and were subject to affirmative procedure. The Minister for Community Safety and Legal Affairs, Paul Wheelhouse, attended to give evidence on the instruments and also to move the relevant motions recommending approval of the instruments.

Victims’ Rights (Scotland) Regulations 2015 (draft)

The draft instrument

3. This instrument was made under the powers conferred by section 2(2) of the European Communities Act 1972. They amend the Victims and Witnesses (Scotland) Act 2014 to extend the rights of victims of crime by creating enforceable rights and placing obligations on competent authorities (for example the Scottish Prison Service) . The Policy Memorandum on the Regulations explain that placing these rights and obligations on the face of the 2014 Act will create a specific legal framework to enable victims to recognise clearly their rights and the obligations of competent authorities under the Directive.

Scrutiny by the Delegated Powers and Law Reform Committee

4. The instrument was initially laid on 4 November but was withdrawn and re-laid on 18 November due to minor drafting concerns raised by the Delegated Powers and Law Reform Committee’s legal advisers. That Committee considered the re-laid instrument at its meeting on 24 November 2015 and agreed that it did not need to draw it to the attention of the Parliament on any grounds within its remit.

Justice Committee consideration

Call for views

5. Given the wide-ranging nature of the instrument, the Committee agreed to undertake some additional scrutiny in the form of a call for written views. Responses to the call for evidence were used to inform the Committee’s approach to the evidence session. A compendium of submissions is available via the Committee’s website1

Justice Committee consideration 8 December 2015

6. In his opening statement, the Minister explained that—

“Victims’ Rights (Scotland) Regulations 2015 will, in conjunction with Justice of the Peace Courts (Special Measures) (Scotland) Order 2015, which the committee will also consider this morning, complete our transposition of directive 2012/29/EU, which is commonly known as the victims’ rights directive. The directive establishes minimum standards on the rights, support and protection of victims of crime. It seeks to ensure that all victims of crime receive appropriate protection and support; can participate in criminal proceedings in accordance with national law; and are recognised and treated in a respectful, sensitive and professional manner.”2

7. During this evidence session, the Minister also agreed to write to the Committee with additional information on a number of issues. This letter, which is referred to in the body of this report, is provided at Annexe A.

The Victims’ Code

8. Section 3B of the 2014 Act, as inserted by Regulation 4, obliges the Scottish Ministers to produce a Victims’ Code for Scotland. The Code will set out in simple language what rights and entitlements a person has in the event that they are a victim of crime. The Code will also act as a signpost to further information, advice and support for victims of crime.

9. The Minister clarified that the code would be published in the New Year to coincide with the passing of the regulations and that it “should be a living document that is subject to regular review.”

10. Following concerns raised by Children 1st the Committee asked about the publication of a child friendly version of the code and how such a document might be tailored to different age groups. Scottish Government Official Graham Ackerman explained that the children’s code was being drafted following extensive conversations with a variety of support groups, including Children 1st, Scottish Women’s Aid and the Children’s Commissioner.

Intermediaries

11. Children 1st also proposed that intermediaries be used to enhance the special measures for child victims (Intermediaries are highly trained individuals in child communication who relay questions to children from advocates and lawyers during cross examination to ensure that children can understand what they are being asked).

12. Mr Wheelhouse explained that the focus to date had been on the effective implementation of other vital improvements to special measures under the Victims and Witnesses (Scotland) Act 2014. However, he said he intends to consider intermediaries in due course, as part of on-going work to look at the provision of support to those with communication difficulties through the appropriate adult scheme.

The definition of “parent” and informal kinship carers

13. The Committee also highlighted concerns raised by Children 1st regarding the definition of parent and in particular, the rights of informal kinship carers who do not have (or do not yet have) parental responsibilities.

14. The Minister responded by emphasising that competent authorities have the power to extend the victim’s rights to other appropriate persons, including kinship carers, if it is in the child’s best interests to do so. The Committee sought greater clarity on the issue of informal kinship carers and the potential timeframe associated with them becoming a statutory carer. Neil Robertson, emphasised that—

“It is asked whether it is in the best interests of the child for the parent to be involved. If the answer to that is immediately no, proposed new section 29A(4) provides for another appropriate person, which would cover kinship carers and a range of other people.”3

Support services

15. The committee raised concerns regarding the potential impact the regulations might have on support services. Such concerns were based on the assumption that any improvements to the way in which support services were signposted to victims would inevitably increase demand.

16. Graham Ackerman from the Scottish Government clarified that competent authorities were already fulfilling the majority of the requirements in the regulations and, he therefore did not envisage a substantial increase in demand. However the Minister explained that it would be difficult to anticipate what level of additional activity there would be, but said there would be continuing dialogue with victims’ support organisations to ensure that they would have the resources that they need and, where possible, to support them in doing their work.

Resourcing

17. The Committee was keen to understand the associated resource implications of the regulations; specific reference was made to specialist interviewers and separate waiting rooms for victims in court buildings. The committee sought assurances that competent authorities would prioritise capital spend in these areas.

18. In a written response provided following the meeting (Annexe A), the Minster clarified that:

“There are already measures to avoid contact between victims and offenders in terms of special measures, separate waiting rooms, bail conditions and non-harassment orders. As detailed in the cross-agency Standards of Service for Victims and Witnesses of Crime published in April this year, all courts provide separate waiting rooms for prosecution and defence witnesses. I appreciate that I offered to come back to the Committee with further details on relevant investment in the SCTS estate and intend to do so, where possible, under separate cover once we have obtained the relevant information. For child victims being interviewed by the police, fixed and mobile Video Recorded Interview (VRI) Units are available across the country for Joint Investigative Interviews (Jll). This means interviews can be conducted in a location most appropriate for the victim. These units can also be used out with the scope of Jll where VRI is deemed necessary due to the vulnerability of the victim.”

Complaints

19. Members were interested in what new complaints procedures, if any, would be provided by the regulations and in particular what avenue of redress a victim might have if they felt they had not been properly treated by a judge. Neil Robertson from the Scottish Government outlined the process by which the judicial office for Scotland, criminal justice agencies and the Scottish Courts and Tribunals Service were being trained to deal with victims. Mr Robertson continued by explaining that the regulations would maintain the complaints procedures already used by the competent authorities, the rationale being that this would be more user friendly than a more formal route.

20. The Minister agreed to write to the Committee to clarify the complaints procedure relating to the conduct of the judiciary (Annexe A). In the attached response, the Minister directs the Committee to the complaints about the Judiciary (Scotland) Rules 2015. The Minister also provided details regarding the enforcement of victims’ rights stating that—

“a victim will be able to enforce their rights and make any complaints through the complaints procedures of the competent authorities. These complaints procedures may, if necessary, lead to consideration by an independent body in the form of the Scottish Public Services Ombudsman or the Police Investigations and Review Commissioner. Ultimately, a victim who is concerned that their rights have been infringed may be able to seek redress via judicial review.”

Temporary release

21. The Committee raised the issue of temporary release, citing a submission from Scottish Women’s Aid, which expressed concerns that victims would not be able to obtain information on when a prisoner was released temporarily.

22. The Minister noted the concerns raised by Scottish Women’s Aid but highlighted that—

“Prisoners sentenced to less than 18 months are more likely to be released on home detention curfew than on temporary release. Indeed, temporary release for prisoners serving sentences of less than 18 months is infrequent, if not rare. In considering whether a prisoner is eligible for temporary release, the Scottish Prison Service carries out a wide-ranging risk assessment, which involves community partners and the police. If there was an assessed risk to a victim, temporary release would not be permitted. Prisoners released on home detention curfew fall within the scope of the new VNS. We are taking an approach that tries to reflect the complexity of the situation and the need not to notify victims of the death or transfer of a prisoner in certain examples, which victims would not necessarily want to be contacted about.”4

23. Neil Robertson added—

“There are circumstances where the victim would be made aware of the release. I spoke to colleagues in Police Scotland about this. The victim is not necessarily made aware when prisoners are released, whether on a temporary or a permanent basis, but each release is assessed on a case-by-case basis. A victim will be updated and protective measures will be put in place if the police think that there is a continued risk to them.”5

24. Following the concerns raised by the Committee in relation to the victim notification, scheme the Minister agreed to provide additional material in writing (Annexe A). In his written response the Minister proposes that—

“any potential extension of the proposed system, I consider that some further analysis is required. In particular, there is a need to consider the existing arrangements for temporary release of these prisoners, the potential impact on SPS of providing additional information to victims, and the likely benefit for victims. I have asked my officials to take this forward in collaboration with SPS, and also to discuss this matter with Scottish Women's Aid, who raised this in their evidence to the Committee.”

Victims of traffic incidents

25. The Committee drew the Minister’s attention to the submission from the Scottish Campaign against Irresponsible Driving (SCID), which argues that the regulations do not meet the underlying principles of the directive with regard to victims of traffic incidents.

26. The Minister explained that the proposals were given careful consideration earlier in the year but that he had indicated to SCID that he did not intend to pursue the establishment of a notification scheme relating to the reinstatement of driving licenses at present. He did, however, agree to keep the matter under review and consider it again if any future work is carried out in relation to the information provided to victims and their families more generally.

Victims Commissioner

27. The Committee asked the Minister for his views on the appointment of a Victims’ Commissioner in Scotland, who would champion the rights of victims. The Minister contended that a Victims’ Commissioner would largely duplicate the role already being filled by Victim Support Scotland and other victim support organisations. He said he felt that the resources would be better used supporting the immediate needs of victims but he was happy to consider revisiting the issue, if the evidence and key stakeholders working on the ground agreed that such a role would add value.

Translation services

28. The Committee asked for more details regarding the use of translation services for victims and in particular the need for victims to feel comfortable communicating in their own language. The Minister directed the Committee’s attention to proposed new section 3E(4)(b) of the 2014 Act which specifies that an authority has to take into account any personal characteristics of the person which may affect the person’s ability to understand the communication and be understood in responding to the communication.

29. The Minister moved the motion in his name: S4M-14801—That the Justice Committee recommends that the Victims’ Rights (Scotland) Regulations 2015 [draft] be approved.

30. The Motion was agreed to.

Recommendation

The Committee welcomes the Ministers commitment to the ongoing improvements to the information and support available to victims of crime and understands that the victim’s code is a living document, which will require updating. The Committee would welcome updates on any proposed revisions to the code or other areas relevant to the rights of victims. The Justice Committee therefore recommends to the Parliament that it approve the draft instrument, having regard to the explanations and assurances provided in evidence by the Scottish Government (as outlined above).

Justice of the Peace Courts (Special Measures) (Scotland) Order 2015 (Draft)

The draft instrument

31. This instrument is made under powers conferred by section 288G of the Criminal Procedure (Scotland) Act 1995i and all other enabling powers.

32. The instrument applies sections 271 to 271M, 288E and 288F of the Criminal Procedure (Scotland) Act 1995 to proceedings in justice of the peace courts subject to certain modifications. These provisions were inserted into the 1995 Act by the Vulnerable Witnesses (Scotland) Act 2004, and subject to further amendment under the Victims and Witnesses (Scotland) Act 2014. The overall effect of the instrument, therefore, is to make current provision on vulnerable witnesses apply in the JP courts as they apply in the sheriff and High courts.

Scrutiny by the Delegated Powers and Law Reform Committee

33. The Delegated Powers and Law Reform Committee considered this instrument at its meeting on 17 November 2015 and agreed that it did not need to draw it to the attention of the Parliament on any grounds within its remit.

Justice Committee consideration

34. The Justice Committee considered the draft order on 8 December 2015, when Paul Wheelhouse MSP, Minister for Community Safety and Legal Affairs and Scottish Government officials attended to give evidence.

35. In his opening statement, the Minister explained that—

“The order will allow special measures to be used for the benefit of vulnerable witnesses who give evidence in the justice of the peace courts. Special measures include, for example, enabling vulnerable witnesses to give evidence from behind a screen to prevent their seeing the accused, or via live videolink so that they do not have to be present in court. Such special measures have been available for some time in the sheriff courts and the High Court, and their provision was recently expanded through the Victims and Witnesses (Scotland) Act 2014. We consider that the extension is required to ensure compliance with the victims’ rights directive. In principle, it is right that the same protections should be available to vulnerable witnesses who give evidence in JP courts.”6

36. The Committee asked why such measures were not implemented earlier. The Minster explained that during the passage of the Vulnerable Witnesses (Scotland) Act 2004, the then Scottish Executive set out two reasons why it considered that extending special measures to the district courts was not considered necessary. First, the need for extension had not been demonstrated, and secondly, the future of district courts was unclear, pending the outcome of the review of summary justice that was being carried out by Sheriff Principal McInnes.

37. The Minister moved the motion in his name: S4M-14802—That the Justice Committee recommends that the Justice of the Peace Courts (Special Measures) (Scotland) Order 2015 [draft] be approved.

38. The Motion was agreed to.

Recommendation

The Committee welcomes the extension of the rights of victims that will be provided by the regulations and recommends to the Parliament that it approve the draft instrument, having regard to the explanation provided in evidence by the Scottish Government (as outlined above).

Annexe A

Thank you for the opportunity to provide evidence to the Committee on Tuesday 8 December on the draft Victims' Rights (Scotland) Regulations 2015 ("the Regulations"). I agreed to follow up on a number of points that arose during the session.

Judicial complaints

Complaints about the conduct of the judiciary are dealt with under the Lord President's "Complaints about the Judiciary (Scotland) Rules 2015". Further information about this process is available at:

http://www.scotland-judiciarv .org.uk/15/0/Complaints

Victim Notification Scheme and Temporary Release

On the suggestion that victim notification arrangements be further extended to include information about the temporary release of prisoners sentenced to less than 18 months imprisonment, I would re-iterate that by enabling information to be sought in relation to all lengths of sentences, as the Regulations propose, we are already taking a leading approach in the UK in terms of the right of victims to access information about the release of offenders.

However, I appreciate the Committee's concerns about temporary release, notwithstanding the low numbers of offenders involved. In relation to any potential extension of the proposed system, I consider that some further analysis is required. In particular, there is a need to consider the existing arrangements for temporary release of these prisoners, the potential impact on SPS of providing additional information to victims, and the likely benefit for victims. I have asked my officials to take this forward in collaboration with SPS, and also to discuss this matter with Scottish Women's Aid, who raised this in their evidence to the Committee. I am happy to provide a further update to the Committee once this work is complete.

Enforcement of Victims' Rights and Review of the Victims' Code for Scotland

I can advise that a victim will be able to enforce their rights and make any complaints through the complaints procedures of the competent authorities. These complaints procedures may, if necessary, lead to consideration by an independent body in the form of the Scottish Public Services Ombudsman or the Police Investigations and Review Commissioner. Ultimately, a victim who is concerned that their rights have been infringed may be able to seek redress via judicial review.

The Government plans to review the Victims' Code for Scotland in the near future in conjunction with the criminal justice agencies and the Victims Organisations Collaborative Forum Scotland. This review is intended to take into account early feedback on the use of the code in everyday interactions with victims and, through the victims' organisations, whether the code is meeting the needs of victims of crime. As required by the Regulations, we will also keep the code under review on an ongoing basis.

Interview and Waiting Rooms for Victims of Crime

There are already measures to avoid contact between victims and offendersin terms of special measures, separate waiting rooms, bail conditions and non-harassment orders. As detailed in the cross-agency Standards of Service for Victims and Witnesses of Crime published in April this year, all courts provide separate waiting rooms for prosecution and defence witnesses. I appreciate that I offered to come back to the Committee with further details on relevant investment in the SCTS estate and intend to do so, where possible, under separate cover once we have obtained the relevant information.

For child victims being interviewed by the police, fixed and mobile Video Recorded Interview (VRI) Units are available across the country for Joint Investigative Interviews (Jll). This means interviews can be conducted in a location most appropriate for the victim. These units can also be used out with the scope of Jll where VRI is deemed necessary due to the vulnerability of the victim.

I hope this letter is helpful to the Committee in the preparation of its report to Parliament. I will, of course, consider the terms of that report and write to the Committee if any further information is requested.

As I mentioned in my remarks, the ongoing improvements to the information and support available to victims of crime are a priority for this Government, and I believe these Regulations and the new Victims' Code for Scotland will add significantly to that work. I will ensure that Committee Members are sent a copy of the Code when it is published and look forward to the Committee's continued support to help improve the experience of victims in Scotland.

PAUL WHEELHOUSE


Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites.

Footnotes:

i 1995 c.46. Section 288G was added by the Vulnerable Witnesses (Scotland) Act 2004 (asp 3) section 10. Section 288G was amended by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) Schedule 1, paragraph 26(s) and should be read with paragraph 33 of Schedule 1 to that Act.

1 Written submissions received:
http://www.scottish.parliament.uk/S4_JusticeCommittee/General%20Documents/Victims_Rights_SSI_submissions.pdf

2 Scottish Parliament Justice Committee. Official Report 8 December 2015 Col 14. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=10263&mode=pdf

3 Scottish Parliament Justice Committee. Official Report 8 December 2015 Col 31. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=10263&mode=pdf

4 Scottish Parliament Justice Committee. Official Report 8 December 2015 Col 21. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=10263&mode=pdf

5 Scottish Parliament Justice Committee. Official Report 8 December 2015 Col 21. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=10263&mode=pdf

6 Scottish Parliament Justice Committee. Official Report 8 December 2015 Col 33. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=10263&mode=pdf

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