Victims, Witnesses, and Justice Reform (Scotland) Bill

Action for Children protects and supports children and young people, providing practical and emotional care, ensuring their voices are heard and campaigning to bring lasting improvements to their lives. We run over 90 services across Scotland, our 850 staff support, care for and love more than 25,000 children, young people, and their families, across 30 of the country’s 32 local authorities.
Action for Children have a strong track record of working with the most vulnerable children, young people, and their families. Our vision is one in which every child and young person in the country has a safe and happy childhood and the foundations they need to thrive.
We work with young people who have experience of the criminal justice system including victims, we also offer community based diversionary activities and help to address offending or anti-social behaviour.
Often those children and young people who most needed to be lifted out of trouble and adversity were the ones least likely to receive effective help and support. Our response draws on our experience and expertise in supporting children, young people, and their families.

Action for Children fully support the creation of a Victims and Witnesses Commissioner. We know that for any victim of crime, but especially for young people the criminal justice landscape can be complex to understand and navigate. Indeed, often the criminal justice system seems solely focussed on bringing justice to the perpetrator, while the victims can unintentionally become an afterthought in the process. This Bill seems to be a way to readdress this imbalance and ensure that victims are at the forefront of the justice system.

Having a central point of contact for victims of crime where they can be informed and supported of their rights will be key to the Commissioners’ success, as too often young people do not feel that they have the current, accessible, and tailored information they need relating to their situation. This can and has meant that many victims are not realising their rights and entitlements to justice and their overall wellbeing. Action for Children believe that victims and witnesses must have faith in the justice system and feel protected. We recognise many people feel the police are understaffed and underequipped to deal appropriately with victims and witnesses. This in turn has led people to be wary and cautious in even report some crimes, the current system has been failing victims and witnesses.

We also know that while the criminal justice landscape is complex so too is the varied experiences and history of those who are victims of differing crimes. For this reason, we believe that a real culture shift is required for those individuals who are currently not seen as or valued as a typical "victim". A commissioner in this area can be the catalyst for change needed to drive and deliver change.
We note the success of the Children and Young People’s Commissioner Scotland (CYSPS). It was crucial this Commissioner had the legal power to investigate certain issues that affect the human rights of children or young people in Scotland. Indeed, the CYSPS has undertaken multiple investigations ranging from, mental health counselling in schools, to Local Authority duties around secure accommodation to restraint and seclusion in Scotland’s schools.

The CYSPS can also investigate cases affecting the human rights of an individual child or young person. While noting that the proposed Victims and Witnesses Commissioner can conduct investigations, we question why the proposed Commissioner would be prevented from acting in relation to individual cases.
Action for Children also hope that the Commissioner would place a spotlight on forgotten or hidden victims of child criminal exploitation. There is duality of the predicament of exploited children in that they are victims who are involved in crime. Having the Commissioner in place we believe they can drive change so that all those involved in the justice system are aware of the potential for young people committing offences to also be victims of exploitation.

For these young people Scotland needs to design, implement and fund appropriate and effective support when children are the victims of exploitation. This is especially needed as sometimes the young person might not fully realise that they are a victim, or are too afraid of the perpetrator, or of being persecuted themselves. Having a Victims and Witnesses Commissioner could ensure that these hidden victims receive the support and recognition they need and deserve.

Action for Children believe that it is essential that there is a requirement for trauma-informed practices. Unfortunately, we know too well that trauma plays a major role in a lot of cases and therefore better support should be available for everyone going through the justice system not just victims and witnesses.

At Action for Children our services have evolved to put trauma, bereavement, and loss at the centre of the work we do. As an organisation we have also signed up to the Scottish National Trauma Training Programme Leadership Pledge. From experience we know that trauma can make it difficult for children to express their feelings. More often than not, they have never had a safe space to be vulnerable, so it can be frightening to open up. It should be recognised that victims’ needs are distinct and varied, while their experiences are also diverse. Support should be about responding to and understanding the full range of these experiences and staying beside victims of crime every step of the way. Our practitioners who work with victims of crime, have told us those who have formerly been a victim of crime can not only be vulnerable to further crime victimisation but may also engage in behaviour which can bring them into conflict with the law themselves.

Trauma informed practice should be an integral part of all services. After all people’s behaviour is shaped by their past experiences, either positive or negative. Trauma can have a very complex impact, therefore there has to be an awareness, understanding and trust from all institutions to adopt a trauma informed approach, working at the child’s own pace; in a way they are comfortable with. Having the knowledge that victims can and do display differing risk considerations will determine the range of support that they will need to access. Agencies building up a risk knowledge bank will mean that can invest in differing support and working practices to meet the young person’s individual needs.

One of the founding principles of the Promise was that children and young people should not have revisit their trauma by consistently retelling their story over and over to various statutory and non-statutory professionals.

That is, we welcome the pilot ‘Bairns’ Hoose’, which aims to provide a safe and welcoming place for children to go to once a crime has been reported. The Bairns Hoose will mean that a child victim or witness of crime will only need to tell their story two or three times at most (instead of what can be 14 times) and one of these times will be recorded to be used in the justice process. This will result in the removal of long waits for a case to go to court, which can make it even more difficult for a young person to recover and thrive from what has happened to them.

We also know that trauma is not just limited to the individual victim and that there can be a need, to work with the whole family. This includes ongoing individual assessments of family members to understand the extent to which they may be impacted by their loved one’s experience of victimisation over time. We know individuals and families affected by crime have varying levels of need and capacity to self-manage.

Trauma informed practices should also ensure that victims and witnesses have access to independent advocacy.

Action for Children believe that any measures that encourage support to vulnerable witnesses should be welcomed. As stated in the previous answer better measures for vulnerable witnesses is needed as the entire process can be very traumatising for all involved.

We believe that how ‘vulnerable’ people are determined should have detailed specific guidance. And that this guidance should be co-produced with people with lived experience.

Our staff recounted the story where one of the young people they were supporting, decided to take a civil case to court as a victim, he has a learning difficulty and was incarcerated at the time. He was unable to source legal representation with support and therefore was not able to represent himself. We believe that there needs to be more provision for people who are vulnerable/have additional needs to be supported.

Action for Children supported the concerned individual as best we could to gain representation however this was unsuccessful. From our experience many people will also avoid testifying at a case or giving a witness statement as they do not feel supported within the court process. Some young people state they are afraid that if they speak up they will suffer consequences following the court case, therefore people need to be supported to feel safe and confident to come forward.

Action for Children note the case to be made to make the guilty and not guilty verdict clearer by removing the ‘not proven’ verdict. Action for Children are broadly supportive of the removal of the ‘Not Proven’ verdict.

Anecdotal evidence from our youth justice colleagues state that the ‘not proven’ verdict has been a frustration for both victims and alleged perpetrators.

When an individual is charged and sent to court, the point of this process is to either find the individual guilty and proceed with the appropriate disposal or find them not guilty and admonish them from further involvement. The feeling is the result of a ‘not proven’ verdict, (while saying the case hasn’t been proven beyond a reasonable doubt) leaves the individual accused of the crime, feeling they have not really been absolved of the crime. If ‘not proven’ then there clearly has not been enough evidence to render a guilty verdict therefore having not proven feels like a middle ground that’s not helpful for victims or those accused.

Action for Children don’t have a stated position regarding this proposed change.

Action for Children welcomes this proposal. As we believe it will greatly benefit victims to have specially trained judges for sexual offences.

We are aware that currently there is a lack of consistency in the length of sentences for the same crimes and this is due to judges/sheriffs not being specialised in crimes involving sexual offences. Usually judges/sheriffs are dealing with thefts, violence and sexual offences at the same time and there is a big difference in severity.

Having specialised courts can only improve the quality of work within courts, fairer sentencing and bring closure for the victims.

While Action for Children agree that any development that reduces likelihood of re-traumatisation is positive, however there could be a case to develop this approach further. We already know drug and alcohol courts have also been established and this can help with breaking the cycles of those particular crimes and putting in place customised measures of support and punishment/ rehabilitation while building up the courts knowledge of the subject.

Action for Children believes this is a positive step. As protection and anonymity of victims should be paramount in any justice system which seeks to protects the victim physically and emotionally. We have known situations where victims have had to chase down services to get the support, they are entitled with many victims under the false impression that their anonymity was taken for granted. They did not know that they would have to proactively seek the courts to make an anonymity order. Victims should have the right to have their security and privacy considered, to have reasonable and necessary protection from intimidation and retaliation, and this starts with their identity not being publicly released.

Changing to an effectively an ‘opt out’ situation is more in line with victims’ rights. Contained with this Right is the offer to victims to waive their own anonymity there also comes a responsibility on the courts to provide independent support in helping especially young and vulnerable people to understand the impact of their decision. Again, we would look forward to more detailed information on this part of the provision.

As members of The Criminal Justice Voluntary Sector Forum (CJVSF) we support and echo their submission call, that relates to lifelong anonymity, CJVSF Members highlighted that within this provision, anonymity ends on death. There was concern that when children or adults die as a result of crime, the media can publish details, and this is repeatedly traumatic for families. CJVSF Members felt that there shouldn’t be an automatic presumption that information can be published, they felt that this should only be allowed to happen through an appropriate court order.

Action for Children are supportive of parts of the bill where character assessments are addressed.

As members of CJVSF we support their statement on this matter which said, ' it is important to have pilot studies to evaluate what this change looks like in practice and to understand potential concerns associated with this approach'.

As we have stated in previous questions, Action for Children believe that the Victims and Witnesses Commissioner for Scotland should be there for all victims.

Action for Children would like to highlight the issue of child exploitation, presently in Scotland there is no working definition of ‘child exploitation’. This omission often results in children and young people being prosecuted in the justice system, when in fact these young people are also the victims.

Instead, Scotland should develop and practically use a working definition of child exploitation. The justice system needs to embrace a proper welfare approach, this in turn will treat children, as just that, children, who need our care, protection, and support not prosecution.

The Proposed Commissioner could lead an investigation into this matter to give consideration for victims of criminal exploitation - recognising they may often be charged with offences whilst being victims of exploitation. We believe if better protections for victims of child criminal exploitation we would we see more young people disclosing their exploitation and experiences of harm.

Action for children also believe that victims of crime deserve to know what actions have occurred for the person who affected their life. Having this would allow victims a sense of closure and support from the justice system so that they came move on with their lives. Action for Children believe that an increase and enhancement of community engagement will be needed. If the public are better informed of the journey and consequences of the justice system it will fill a void of misunderstanding relating to punishment and rehabilitation.

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