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5 SERVICE TO VICTIMS AND WITNESSES

There have been many changes in policy in recent years relating to the provision of service to victims and witnesses. For many years courts have been able to permit children and vulnerable witnesses to give evidence using special measures such as a screen to shield the child from the accused, CCTV live link from a room outside the courtroom but in the court building and/or to be accompanied by a support person.

The Vulnerable Witnesses (Scotland) Act 2004 came into force on 1 April 2005. This consolidated and further developed the law surrounding the giving of evidence by vulnerable people. The Act has being commenced in stages from April 2005.

• In April 2005 special measures for children were introduced in solemn cases except for giving evidence on commission ¹⁰ as were provisions relating to identification procedures, use of expert witnesses and the abolition of the competency test
• November 2005 saw the partial commencement of provision for giving evidence on commission for child witnesses in certain solemn cases
• April 2006 the provisions for adult vulnerable witnesses in solemn cases commenced
• April 2007 the provision for special measures for children in summary cases commenced
• November 2007 should see the commencement of special measures for child and vulnerable witnesses in civil cases including Fatal Accident Inquiries

and finally

• April 2008 should see the commencement of special measures for vulnerable adult witnesses in summary cases

In 2004 on the instruction of the then Solicitor General, the Crown Office and Procurator Fiscal Service commenced a review of the handling of investigation and prosecution of rape and other serious sexual offences. This review, 'The Sexual Offences Review' made 50 recommendations including the development of training and guidance for prosecutors, revision to policy and practice, accelerated precognition of such cases, strengthening communications with victims and earlier communication with the police.

The Ayrshire Business Plan 2007/08 states that they are committed to providing a high quality service to the public and in particular to victims and witnesses and they will continue to:

• Provide case specific and general information to victims of crime and vulnerable witnesses in certain cases reported to the COPFS
• Assist and advise on sources of support for crime victims, their families and vulnerable witnesses and to liaise with relevant agencies
• Feedback the experiences of crime victims, their families and vulnerable witnesses so as to improve practice
• Work with colleagues in VIA and other Area of COPFS to provide a high quality, integrated service to victims in all their contacts with the Department
• Work with other criminal justice agencies in developing victim-aware policies and practices

The Area has been involved in the work of the Vulnerable Witness Liaison Officer pilot which has also been taking place in Aberdeen. This is a Scottish Government initiative in relation to the implementation of the Vulnerable Witness Act. The Ayrshire Area Business Plan 2007/08 highlighted the key roles for the officer as:

• To audit and map current service provision, protocols, awareness and training in their local area
• To develop an agreed system of delivery and identify priority action areas for improvement and development
• To provide information to local agencies and the public about the system of local delivery
• To develop and implement monitoring mechanisms for the implementation of the system

VIA staff and the then Area Fiscal were members of the local Vulnerable Witness Liaison Officer Steering Group along with representatives from the Police, Sheriff Court Service, Council, Victim Support, Solicitors, NHS and the Voluntary Sector.

We spoke with the Vulnerable Witness Liaison Officer for the Ayrshire Area who informed that the outcome was to determine whether it is feasible for field officers for the whole of Scotland to provide support and resource to criminal justice agencies, looking at implementation groups and share good practice between these agencies. A report with recommendations will be published by the Scottish Government.

Operation of Victim Information and Advice ( VIA):

A dedicated Victim Information and Advice ( VIA) service was set up and rolled out by December 2004 in the Crown Office and Procurator Fiscal Service as a result of concerns relating to the lack of information available to victims and witnesses. The principle aims of VIA are:

• To provide information to victims, bereaved next of kin and some witnesses about the criminal justice process in general
• To keep victims and bereaved next of kin informed about the progress of the case that affects them in particular
• To advise on and facilitate referral to other agencies for specialist support and counselling as required

Certain cases should be referred to VIA in order that they can make appropriate arrangements for the victim/witness. Cases, which must be referred, include certain serious (solemn) cases, which have a victim, deaths cases reported for consideration of criminal proceedings or Fatal Accident Inquiry or where there are likely to be significant further inquiries, domestic abuse cases, racially aggravated cases, cases involving children, sexual offences and cases with vulnerable witnesses.

The Ayrshire Area has two VIA officers, one in each office. There is a system in place to check PROMIS, the Departmental case tracking system, to ensure that all cases from the custody list that should be referred to them for action have been. If relevant custody cases have not been referred then they will pursue them. There has been only one occasion where a child witness had turned up at court but there were no special measures in place. In this instance the case had not been referred to VIA. VIA staff indicated that they generally receive adequate and timely information from Fiscal staff to allow them to make arrangements to put special measures in place.

VIA staff in the Ayrshire Area have been involved in a pilot with regard to Phase 3 of the Vulnerable Witness Act. This involves VIA preparing child witness notices. Phase 4 which will commence April 2008 will also involve VIA completing vulnerable adult notices. We were informed that once these systems are settled in it is expected that VIA across the country will draft child witness notices and vulnerable adult notices for both summary and solemn cases.

VIA staff provide training on the role and responsibilities of VIA to Fiscal staff, Police and outside agencies eg Social Work. The VIA member of staff based in Ayr is a member of the Vulnerable Witness Forum which relates to issues concerning the Vulnerable Witness Act.

VIA staff advise that they try their very best to accommodate victims and witness needs, for example, making arrangements for child witnesses who require special measures when the parents are also witnesses. In these circumstances VIA staff will liaise with legal staff to try and schedule witnesses in a way that will allow the child to be supported by the parents when their evidence is being heard and then the parents can give evidence later.

Protocol with VIA and Witness Service:

There is a protocol between VIA and the Witness Service which covers referrals from VIA to the Witness Service. This covers referrals, pre-court visits for witnesses and the exchange of information.

VIA staff and Witness Service staff indicated that the protocol works well in Ayrshire and there is a good working relationship between the two. VIA will refer cases that do not fall within the prescribed categories if there is a need and similarly the Witness Service will inform VIA of vulnerable persons that come to their attention.

The Witness Service advised that there are good relations between Fiscal staff, VIA and the Witness Service and VIA is considered a 'valuable service'. The Witness Service has no hesitation in picking up the phone for advice and they are usually in daily contact with VIA. We were informed that the Witness Service have personal contact with VIA when the High Court is sitting and when they are supporting witnesses in a particularly difficult case they will routinely meet with VIA during or afterwards to discuss the case and to identify if anything could have been done better.

Referrals are passed to the Witness Service in a timely manner, however, we were advised by the Witness Service that they do not always receive automatic updates on cases already referred, for example, where a new trial diet has been fixed and therefore they may not be aware of a particular person requiring the use of the service.

With regard to relations with Fiscal staff the Witness Service say that working relations with local Deputes is very good but they note that there is a reliance on ad hoc deputes who may not be familiar with the protocol. With regard to passing on information when the court is sitting the Witness Service use the blue 'Court Information Slip' procedure where they will write down information which is given to the court officer to pass to the Depute in court. We were advised that this system works well.

There are normally formal meetings held in Kilmarnock with Witness Service, VIA, Sheriff Clerks and Fiscal staff. These, however, have been put on hold but will resume once the new Sheriff Clerk takes up post. VIA in Ayr recently held a meeting at operational level with the Sheriff Clerks. This was found to be very useful.

The Witness Service indicated that there is an issue concerning continued Intermediate Diets to the week before the trial diet. This means that there is very little time for the Witness Service to arrange for court familiarisation visits.

The Witness Service advise that the screens used for special measures within the court building generally work well. There are however, technical difficulties when the remote site is used or when there are court to court links. VIA staff have also indicated that remote sites are a problem and business is interrupted as a result.

In Kilmarnock in particular, both VIA staff and the Witness Service have indicated that the facilities in the court are adequate to allow children and vulnerable witnesses to be brought in the back door and use rooms on the bottom level. We were informed that this issue is discussed regularly with the Sheriff Clerks at Liaison meetings. Remote sites are the responsibility of the Sheriff Court Service.

In Ayr, the Witness Service has indicated that the facilities are not great in that the defence witness room is located directly across from the Crown witness room.

Fiscal staff including VIA input to Witness Service training and the Witness Service is occasionally invited to participate in Fiscal training.

Independent Witness Feedback:

Independent feedback was received from witnesses at court in the form of a questionnaire and we are indebted to the Witness Service for the help given to us in obtaining this information. 78 completed questionnaires were received, 41 from Kilmarnock and 37 from Ayr.

Drawing conclusions from our review of the completed questionnaires:

• The majority of witnesses received adequate notice to attend court and received information on being a witness
• Most witnesses received information on what was happening in court and this was usually by the Witness Service at least every two hours
• Only two witnesses indicated that they were not treated with courtesy
• Pre-trial court visits were arranged where necessary and all witnesses requiring special needs received them.

The overall analysis of information received from witnesses in Ayrshire show that a good service was provided.

A more full analysis of the responses can be found at Appendix 4.

Feedback from Women's Aid:

South Ayrshire Women's Aid advise that they have good relations with the Fiscal Service and contact tends to be related to more serious cases. They advise that Fiscal staff are more aware of issues surrounding domestic abuse and as a result women are being treated with a lot more respect and attempts are made by court Deputes to make women feel at ease during the court process.

They also describe relations with VIA staff as very helpful. They indicated that VIA inform women of what is happening in their cases and that this is making a big difference and as a result Women's Aid are receiving more positive feedback from women on their experiences with the criminal justice system. The only issue referred to was that women feel the system is unfair when a case has been marked no proceedings. South Ayrshire Women's Aid suggest that it would be helpful if the victim was to receive a letter of explanation.

Fiscal staff are not involved in training to South Ayrshire Women's Aid and vice versa. We were advised that such involvement would be welcomed as it would help each other understand their respective roles.

North Ayrshire Women's Aid advised that relations with the Fiscal Service are quite good and if there is a problem they will phone the office for information or advise which is always provided.

There is Fiscal representation on the Multi-agency Forum for Domestic Abuse. There is also representation on the Safer Communities Thematic Group which feeds into the Community Planning for North Ayrshire. The Area Fiscal's PA has recently contacted North Ayrshire Women's Aid to arrange some training.

One concern for North Ayrshire Women's Aid relates to cases where mothers and children are involved as witnesses and have to attend different locations because of the special measures that are put in place for the children. Problems arise when the mother is the only support for the children and therefore there is an issue concerning who will be the support for the children while they give their evidence. VIA Officers in Ayrshire are aware of this situation as stated above and they will try their best to make appropriate arrangements.

Feedback from Women's Refuge:

Women's Refuge indicated that sometimes it is difficult to get contact with the Fiscal's office but when contact is made advice is always provided by Fiscal staff. Information regarding bail is provided also. They indicated that women used to find attending court an intimidating experience but it is much better now that special arrangements can be made for them, for example, entering through the back door of the court, etc.

Feedback from Rape Counselling:

Rape Counselling is based in Kilmarnock but also provide a service for Ayr. They informed us that relations with Fiscal staff are good and that VIA staff are very helpful in keeping them up to date with issues concerning cases they are involved in. They would have no hesitation in picking up the phone to ask Fiscal staff for advice. They also informed that the Fiscal in court always attempts to facilitate victims' needs.

One concern for Rape Counselling is that they feel they are no longer required when the victim attends court as the Witness Service take over at this point. It is felt that since Rape Counselling staff have supported the victim for some time they should also be able to support this person while at court. This is an issue that Rape Counselling and Witness Service should discuss.

Rape Counselling advise that they would be happy to provide input to Fiscal training and would welcome input from the Fiscal Service in their own training.

Feedback from Victim Support:

North Ayrshire Victim Support describes relations with the Kilmarnock office as very good and they find VIA staff very helpful. They informed that Fiscal staff participate in their foundation training even if it is a weekend day and they will also participate in ad hoc training days for the Victim Support and Witness Service.

East Ayrshire Victim Support describe relations with VIA staff as very good and relations with the Fiscal's Office as good in that they are always make themselves available to provide advice. Again they informed us that Fiscal staff get involved in their foundation training and they have had a meeting with staff at the Kilmarnock office to get to know each other. They also informed that they and Fiscal staff have worked together on issues relating to the Vulnerable Witness Act including the Domestic Abuse Forum.

East Ayrshire Victim Support state that formal joint training would be good in that it would allow each other to get to know more about their respective roles. The only area they would like to see improvements is when cases have been dropped. In these circumstances they would like to receive information on the reasons for this so that they can inform their clients.

South Ayrshire Victim Support also describes relations with the Fiscal's Office as good and describe VIA as providing a 'great' service in that VIA has made a positive difference to the whole process for a victim. There is no hesitation in phoning VIA or the Fiscal's Office for information or to pass on details of victim vulnerabilities that they may become aware of.

There is no specific joint training between the South Ayrshire Victim Support and the Fiscal's Office.

Victim Support advise that they can make arrangements for additional security for victims of domestic abuse and in order to do this they have found no problems in liaising with VIA to find out information about the case. VIA do not generally make referrals to Victim Support and while Victim Support appreciate that a direct referral is not always possible they would welcome any.

Feedback from Victims and Witness Unit:

A vulnerable witness pilot project was established in Ayrshire and Aberdeen in October 2005. This is run by the Criminal Justice Directorate of the Scottish Government. The aim is to provide a more co-ordinated approach to support victims and witnesses. The provision of service starts from the incident occurring through the investigation and court process to post trial support.

We were informed that there has been two criminal justice audits carried out in Ayrshire relating to this and the aim was to identify what was happening between criminal justice partners and what the links were. The Area Fiscal along with representatives from other agencies were members of the Vulnerable Witness Act Steering Group where they agreed to look at their systems to enhance implementation of the Vulnerable Witness Act in Ayrshire.

The Victims and Witness Unit advised that in Ayrshire the process for dealing with child witnesses was being carried out well. We were advised that in the Ayr office the District Fiscal looks at all cases involving children.

We were informed that CCTV can be problematic in that a child can be frightened if the person asking questions through the link leans in and all the child can see is a face on the TV. There are also occasions where there is a lack of CCTV equipment when there is a Sheriff and Jury sitting which means that cases have to be adjourned. In addition there can also be technical difficulties with use of remote sites which can cause delays. The provision of remote sites is the responsibility of the Sheriff Court Service.

In Ayrshire there is a system where if a domestic abuse case is not sufficient for custody then it is treated as an undertaking (where the person has to turn up at court on a specified date).

The Victims and Witness Unit advised that case reports are being checked through a case management process to ensure quality of reports before they are submitted to the Fiscal. This should ensure that all vulnerability fields are completed and there is a lot of good work taking place between the police and the Ayrshire Area in respect of this.

We were informed that there is good work between the Fiscal Service and Witness Service, for example, pre-trial visits.

It was reported that the Fiscal Service has difficulties in providing statistics relating to child witnesses. However, this is improving.

The Victims and Witness Unit noted that there is good training provided to the police from the Ayrshire Area and that Fiscal staff are also involved in training sessions to the defence, SCRA and NHS.

The Victims and Witness Unit reports that there are no differences in Ayr or Kilmarnock relating to how Vulnerable Witness Act requirements are being applied and staff try their best to provide the best support available but sometimes compromises have to be made because of the reality of the situation, for example, use of CCTV and a supporter being requested but one may not be available. Also the use of standby arrangements could be improved.

Overall the Victims and Witness Unit feels that the Ayrshire Area is doing a great job in relation to victims and witnesses, a lot of thought goes into their work and there is a lot of pressure on staff to process cases.

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