Crown Office ‘victims’ of misunderstanding?

Thomas Ross QC

This week, the head of the Crown Office and Procurator Fiscal Service (COPFS), Lord Advocate James Wolffe QC signed a memorandum of understanding with Rape Crisis Scotland, pledging to better serve “victims” of sexual crimes.

Scottish Legal News asked the Crown Office why it does not use the term ‘complainer’ or ‘alleged victim’ where guilt has not been established.

A spokesman for COPFS said that the term ‘victim’ is “set out in legislation”; that it is more easily understood by the public and that it is “not necessary to include the word alleged” before it as the presumption of innocence is “a well-established concept within Scots criminal law”.

He added that “a person’s status as a victim of crime is not dependent upon whether anyone has been prosecuted or convicted for the crime”.

However, the relevant legislation, the Victims and Witnesses (Scotland) Act 2014, distinguishes between victims and alleged victims: section 1(1) refers to “a person who is or appears to be a victim”.

James Chalmers, regius professor of criminal law at the University of Glasgow, told SLN that COPFS’ use of the term is not supported by the act and that “if anything, it implies you shouldn’t use it, or there would be no need for the ‘appears to be’ formulation.”

He also pointed to the 2013 case of Wishart v HM Advocate, in which Lord Eassie states: “…in the context of criminal proceedings it will generally be the case that until guilt is admitted or proved it will not be appropriate to refer to a complainer as being a ‘victim’.

“The very purpose of the criminal process is, of course, first to establish whether the alleged crime has been committed and secondly whether the accused was the perpetrator. In general it is only once the first of these purposes has been achieved positively to the prosecutor that it may properly be said there is a victim of the crime charged.

“It is therefore important that in most aspects of the criminal process care is taken to avoid referring to a person making an allegation of criminal conduct towards him or her as a “victim” other than in a context in which guilt is proved or is assumed for valid reasons.”

Defence counsel Thomas Ross QC told SLN that it makes “perfect sense for the Crown Office to encourage post-trial communication with victims”, but that the language used before trials is equally important.

He said: “Most allegations of sexual assault are met with a denial by the person accused. As such, the public prosecutor must be careful to avoid “language inferring the preference of one position over the other. ‘Complainer’ suggests a person who has made a complaint yet to be adjudicated upon; ‘victim’ suggests that the accused’s position has been rejected by the state before the adjudication process has even begun.”

Mr Ross also cited a case from earlier this year, KP v HM Advocate, in which the Appeal Court of the High Court of Justiciary “reminded prosecutors of a fundamental principle that should already have been obvious: ‘a prosecutor must not convey an impression that he has a personal opinion that the accused is guilty nor that the investigations made by the Crown has led to that conclusion’.

“The remarks of COPFS suggest that, in the case of some staff, the lessons of KP are still to be learned,” Mr Ross added.