The commissioner

The bill provides for the victims and witnesses commissioner. There is no suggestion that the present arrangements are faulty. This person will need premises, will have the power to appoint staff, and an advisory group and so we are talking large sums out of the public purse. The bill is silent on what qualifications such a person must have; in other words, no knowledge of the court system is stated to be necessary.

The commissioner’s functions are set out in s.2 and these include “engaging” with victims and witnesses. However, s.8(1) says that the commissioner will not get involved with an “individual” case, but s.8(2) incomprehensibly, provides that the commissioner can get involved in such case. Section 14 is either dangerous or outrageous, or both, as it allows the commissioner to require a “criminal justice agency” to supply information to the commissioner about, for example, how that agency has dealt with witnesses and victims.

A “criminal justice agency” includes the lord advocate. I do not pretend to be an expert on the role of the lord advocate, but I have always understood that the lord advocate is an independent prosecutor in the public interest and that includes Crown counsel and procurators-fiscal – not a victims/witnesses champion. Now the lord advocate will be answerable to a commissioner, but may, in certain circumstances, decline to co-operate. The commissioner is said to be independent of the Scottish government and is also exempt from defamation actions.The net result is the commissioner will be able to oversee the working of both the criminal and civil justice systems in relation to victims and witnesses – hitherto unheard of. But good money if you can get it.

Trauma-informed practice

In future, courts will be conducted in accordance with “trauma-informed practice” which is defined in s.69 as “a means of operating that:
(a) recognises that a person may have experienced trauma,
(b) understands the effects which trauma may have on the person, and
(c) involves adapting processes and practices, based on that understanding of the effects of trauma, to seek to avoid, or minimise the risk of, exposing the person to:
(i) any recurrence of past trauma, or
(ii) further trauma.”

The unstated assumption is that the courts and those lawyers who appear there have no experience of dealing with trauma or that, thus far, their dealings with it fall short of a standard (unspecified). This is insulting and the proposals are not based on evidence – but who needs it?

A few points occur, e.g. (i) it seems that the trauma need not be related to the events giving rise to the proceedings; (ii) the court does not require to be satisfied that the person did in fact suffer trauma but “may have”; (iii) “trauma” is not defined. The Oxford English Dictionary distinguishes between clinical and psychiatric trauma; distinguishing them is a matter for professionals; (iv) the trauma is defined as having been in the past: it is not necessary that it should be continuing; (v) there does not seem to be any specification of who identifies the existence or risk of recurrence of the trauma; (vi) how is this system going to mitigate “future” trauma? In some cases, a witness may be become distressed while giving evidence. Is that “trauma”? The “trauma” relates to victims and witnesses and so, the family of someone who has been murdered are ignored in this bill. If an elderly person is robbed and seriously assaulted, the family who listen to the evidence are also ignored, as are the family who sit through a fatal accident inquiry.

Trials for rape and attempted rape

These will be taken away from juries.It has been said that jurors rely on “myths”. There is no evidence for this assertion, except experience from mock trials which do not even re-run real cases. There is evidence from England that jurors are not swayed by such myths. For some, that will be enough to dismiss this research, but it is based on real cases, real juries and was conducted over a period of more than 20 years. Taking away these cases from jurors on the basis of pretty-shaky evidence about “myths” is absurd and insulting. Of course, those who would dismiss the English experience would need to explain why the jury number will be reduced to 12, (as in England), but with the requirement for a majority, i.e. 7. One astonishing provision is that the lord justice general will have power to remove a judge from the “judge-only” court. No reasons are spelt out. This is, to me, unprecedented. What is behind this? One possibility is that the Scottish government will attempt to have a judge removed if that judge’s conviction rate is “not satisfactory”. There is a statutory mechanism for getting rid of judges on the grounds of misconduct, not on the ground that the “party line” is not being towed.

Verdicts

The ‘not proven’ verdict will go by implication. The bill does not say so specifically. It has been said that jurors do not understand it. Based on what? That has as much validity as my saying that they do. My experience may be unique, but I have never been asked to explain it and I have never seen a case where I thought that the ‘not proven’ verdict was incorrect.

The English system has in effect a ‘not proven’ verdict in that if the jury cannot reach a conclusion even if they are split 10/2, that is by any other name a ‘not proven’ verdict. In almost every case, a re-trial will take place. Why not ask the jury simply: “Are you satisfied that the Crown has proved the case beyond reasonable doubt?” The late Lord McCluskey suggested that many years ago.

If, as I suggest, nothing has been shown to be amiss with the current system for dealing with witnesses and victims, why do we need a commissioner? If there is no reliable evidence for jurors relying on rape “myths”, why make the change, when we will allow jurors to deal with other cases, perhaps with complex issues? There is a pilot scheme but there is nothing in the bill to say what happens if the pilot scheme is not a “success”, as defined by the Scottish government, i.e. more convictions. The pressure to get more convictions does not necessarily sit well with a fair trial. Why adopt the English model for size of jury and the verdicts available? Why do we need “trauma-informed practice”, as if it is totally absent, or insufficient attention is paid to it at present?

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.