Working Together for Victims and Witnesses
Protocol between
Crown Office and Procurator Fiscal Service
Scottish Courts and Tribunals Service
Police Scotland
and
Victim Support Scotland
Revised June 2021
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Guidelines and tips
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Community
Ask the community
Ask the community for help and clear up your study doubts
University Rankings
Discover the best universities in your country according to Docsity users
Free resources
Our save-the-student-ebooks!
Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors
Victims and Witnesses Support Protocol in Scotland, Study notes of Criminal procedure
The Protocol for sharing information, arranging court visits, identifying vulnerabilities, assessing special measures, and ensuring safety for victims and witnesses in criminal proceedings in Scotland. It also covers the roles and responsibilities of various organizations, including COPFS, SCTS, VIA, and VSS.
What you will learn
- What are the key elements of the Scottish Protocol for supporting victims and witnesses?
- How does the Protocol address the needs of child witnesses?
- What special measures are available for vulnerable witnesses in Scotland?
- What organizations are involved in implementing the Protocol?
- What role does Victim Support Scotland play in the implementation of the Protocol?
Typology: Study notes
2021/2022
1 / 36
This page cannot be seen from the preview
Don't miss anything!
Related documents
Partial preview of the text
Download Victims and Witnesses Support Protocol in Scotland and more Study notes Criminal procedure in PDF only on Docsity!
Working Together for Victims and Witnesses
Protocol between
Crown Office and Procurator Fiscal Service
Scottish Courts and Tribunals Service
Police Scotland
and
Victim Support Scotland
Revised June 2021
Contents
- Purpose
- Role of the Crown Office and Procurator Fiscal Service (COPFS)
- Role of Victim Support Scotland (VSS)
- Role of the Scottish Courts and Tribunals Service (SCTS)
- Role of Police Scotland
- Information Exchange Agreement – Specific Case Progress
- Referrals to Victim Support Scotland (VSS)
- Court Familiarisation Visits (CFVs)
- Routine Information Provision at Court
- Witnesses The Criminal Procedure (Scotland) Act 1995 – Children and Deemed Vulnerable
- Other Vulnerable Adult Witnesses
- Applications for special measures (including for live TV links)
- Applying for special measures – Summary Cases
- Applying for special measures – Solemn Cases
- Annex A- Links to other documents
- Annex B1- Process Map Vulnerable Witness Notices/Application
- Annex B2- Process Map Vulnerable Witness Notices/Application
- Annex C- Form for Referrals to VSS
- Annex D- Court Familiarisation Visit Process
- Annex E- Witness Expenses
- Annex F- Cover sheet for Vulnerable Witness Notices and Applications
Role of the Crown Office and Procurator Fiscal Service (COPFS)
- The Crown Office and Procurator Fiscal Service (COPFS) is responsible for the prosecution of crime in Scotland, the investigation of sudden or suspicious deaths, and the investigation of criminal complaints against the police.
- COPFS has published commitments to victims and prosecution witnesses, a link to which can be found at Annex A. These commitments provide every victim, prosecution witness, their families and carers, and bereaved families in deaths reported to the Procurator Fiscal with clear guidance on the service they can expect to receive from COPFS.
- Victim Information and Advice (VIA) is the dedicated service offered by COPFS to victims, witnesses and the bereaved relatives of those affected by certain crimes. VIA proactively provides information about the progress of the cases in which they are involved and helps them access sources of emotional and practical support. In all other cases information is provided on request.
- VIA refers all witnesses who are vulnerable in terms of the Criminal Procedure (Scotland) Act 1995 (as amended) (the Act) to Victim Support Scotland who will arrange, where it is possible and should the witness wish, for them to look round a court before a trial, known as Court Familiarisation Visits (CFVs) or to arrange for a supporter from VSS to assist a witness when giving evidence.
- The Act sets out a framework for the use of special measures in criminal and civil proceedings. Child witnesses and certain adult witnesses (deemed vulnerable witnesses) have a statutory entitlement to give their evidence with a standard special measure (see paragraph 77). Other adult witnesses assessed as vulnerable in terms of the Act may also be eligible to give their evidence with the use of a special measure.
- VIA contacts child witnesses (and their parents or carers), and vulnerable adult witnesses to obtain their views on the most appropriate special measures. They assess whether adult witnesses identified as potentially vulnerable meet the criteria defined in the Act and explore what, if any, special measures are appropriate or additional needs they may have. They prepare Vulnerable Witness Notices and Vulnerable Witness Applications for consideration by the Court.
Role of Victim Support Scotland (VSS)
- Victim Support Scotland (VSS) is the lead voluntary organisation in Scotland helping people affected by crime. It provides emotional support, practical help and essential information to victims, witnesses and others affected by crime.
- Police Scotland have a legal obligation to provide victims of crime with appropriate access to support whether it is referring a victim to victim support services where they request to be referred or by providing sufficient information to a victim to afford them the ability to self-refer as per section 3D Victims and Witnesses (Scotland) Act 2014. VSS proactively seeks to engage with all victims referred to them but does not routinely provide specific information about the progress of their case. VSS seeks to carry out a needs assessment with every victim using an internationally recognised toolkit.
- Victim Support Scotland is dedicated to providing information as well as emotional and practical support to victims, witnesses and bereaved relatives attending court. VSS provides a service in all High Court, Sheriff Court and Justice of the Peace (JP) court buildings. VSS will also provide support to witnesses giving evidence from within Scotland in relation to proceedings in another jurisdiction where the support has been requested by the victim or witness personally or by COPFS on behalf of the victim or witness.
- There is a general presumption that VSS personnel will conduct all Court Familiarisation Visits (CFVs) for Crown Witnesses. VSS will provide feedback to VIA colleagues following a CFV where appropriate. They will also provide forms for witnesses to claim associated expenses from COPFS.
- VSS personnel will routinely be appointed to act as supporters in cases involving children or vulnerable adult witnesses. They will only attend remote sites or JP courts on the day of a trial if the court has specifically appointed them as the named supporter for a child or vulnerable adult witness. Any victim or witness can access support by contacting the VSS National Helpline 0800 160 1985 Mon-Fri 8am-8pm or via their website www.victimsupportsco.org.uk.
Role of Police Scotland
- Police Scotland have published standards of service for victims and witnesses in conjunction with the Crown Office and Procurator Fiscal Service (COPFS), the Scottish Courts and Tribunals Service (SCTS), the Scottish Prison Service and the Parole Board for Scotland, as well as bereaved family members, where the death of the victim is believed to be the result of a crime. These standards detail what a victim or witness can expect from Police Scotland.
- In particular, Police Scotland will discuss with victims and witnesses how they will be kept informed in a case; provide them with a Victim Care Card which makes clear where victims can access information on their rights and accessing support; they will also explain how they will deal with the case and what they may ask victims or witnesses to do to help them. Police Scotland will also consider the needs of victims to decide whether they are a vulnerable witness. They will then, with their partners, try to ensure those needs are met.
- Police Officers are deployed in courts across Scotland and carry out a number of duties there, including proactive and intelligence led patrols. The objective of police deployment within courts is to provide public reassurance, maintain public order and prevent intimidation.
- Where information is received by Police Scotland that there is a risk to the safety of any person attending court, the local Policing Division will liaise with the COPFS and SCTS to ensure that there is a prompt and proportionate response.
Information Exchange Agreement – Specific Case Progress
- All parties understand the need to share information in order that the safety of victims and witnesses is not further compromised by their involvement with the criminal justice system and issues of intimidation can be addressed. This Protocol aims to build on the working relationships which already exist locally between SCTS staff, COPFS staff, Police Officers and VSS personnel. It provides a framework to further develop partnership working leading to improved service delivery. All parties are committed to ensuring that all personal data is handled fairly and lawfully with due regard to confidentiality.
- The relevant legislation governing this area includes the EU General Data Protection Regulation (EU) 2016/679 (GDPR), the Data Protection Act 1998 (DPA), the 1950 European Convention on Human Rights (especially Article 9, right to respect for private and family life), the Human Rights Act 1998, the Freedom of Information (Scotland) Act 2002 (FOISA), the Environmental Information (Scotland) Regulations 2004 (EIR) and common law and employment law. It is also central to professional codes of conduct.
- The framework for the protection of victims and witnesses set out in the Victims and Witnesses (Scotland) Act 2014 makes clear that those involved in criminal proceedings have a right to request information about a case in which they are involved.
- Many victims and witnesses will need support to deal with the information they are receiving particularly where a case has had a serious impact on them or their family. It is important that VSS can access information (where appropriate with the victim’s or witness’s consent). This will ensure that victims and witnesses can receive the information within the context of a support or advice service where appropriate. COPFS, SCTS and Police Scotland will work with VSS to ensure that it receives the information it requires in such cases.
- VIA staff will attempt to contact, by telephone, victims, certain witnesses and bereaved nearest relatives in all cases (which have been referred to them) on the same day in the following circumstances, where: the accused appears from custody or by undertaking and is given special bail conditions relating to the victim or a witness; there has been a variation or revocation of special conditions of bail; or an accused has been released from custody.
- If VIA staff are unable to contact any victim in such cases the police are asked to make personal contact with them.
- In all other cases, for example after Intermediate or Trial Diets, VIA aims to have the results preferably the same day but no later than the end of the next working day.
Referrals to Victim Support Scotland
- All vulnerable victims and witnesses will be referred by COPFS to VSS in advance of any trial using the form attached at Annex C.
- Referrals by COPFS to VSS should take place during case preparation with sufficient time to allow VSS to prepare for the attendance of witnesses in court.
- In all cases, all vulnerable victims and witnesses should be referred to VSS no later than 10 days prior to trial. Discussion should take place locally to determine the preferred time for referrals to VSS to ensure efficient case preparation and planning for Court Familiarisation visits and witness attendance at court.
- In High Court cases, referrals should be made as soon as possible following a preliminary hearing.
- In solemn cases in the Sheriff Court, if a referral is not made at an earlier stage, referrals should be made as soon as possible following a first diet.
- In summary cases, if a referral is not made at an earlier stage, referrals should be made as soon as possible following a case being continued to trial.
- Any changes in relation to a case, for example transfer to another court or changes to special measures must be notified to VSS by VIA 10 days in advance or as soon as possible after the change becomes known to VIA in situations where there is less than 10 days to the trial to allow VSS to plan resources.
- Communications between VIA and VSS will primarily be conducted in writing via email. It is recognised that other methods of communication may be utilised in certain circumstances or as a result of local agreements but intimations relating to matters involving the provision of special measures or the calling of a case should be confirmed in writing as soon as reasonably practicable after any other form of communication.
Court Familiarisation Visits (CFVs)
- A map outlining the process to be adopted for CFVs is attached at Annex D.
- In cases referred to VIA, all victims and witnesses identified as vulnerable or potentially vulnerable should be offered a CFV. This should be done in person where possible when exploring vulnerability. Witnesses should be referred to information about VSS.
- There may be circumstances out with the control of all parties to this protocol which mean that a CFV cannot take place. In situations where it is not possible to hold a CFV the reasons for this will be explained to the relevant victims and witnesses.
- COPFS highlights the importance of a CFV in communications with all victims and witnesses. VIA staff refer child and adult vulnerable witnesses to Scottish Government publications which provide information about going to Court. VSS will encourage all witnesses who contact them to have a CFV.
- It is hoped that all child witnesses will have the opportunity to look around a court before trial. But we cannot compel them to do so.
- For all vulnerable witnesses VIA will complete a referral form for VSS which will include details about whether a witness has requested a CFV, the referral form which is attached at Annex C should include details of: when the CFV is preferred; the court where the CFV is wanted; the witness’ views on special measures; any identification issues precluding special measures; and any special measures applied for
- In cases referred for CFVs, VSS will provide VIA with feedback from the court visit where appropriate. Where they have been unable to make contact with the witness they will note the efforts they made to make contact with them and advise VIA accordingly. Feedback should be made by email to VIA.
- Arrangements for the appropriate equipment / supporters to be available should be made well in advance of trial. Many witnesses indicate that they would like to wait until it has been established that the case is likely to go to trial before having a CFV. All parties to this protocol respect these wishes.
- Where a child or adult witness (who needs special measures) has indicated that they do not wish a CFV, the referral form will include that information along with information on the witness and details of any arrangements made for them should be provided to VSS using the referral form. This is so that VSS are aware that VIA has been in contact with them and arrangements are made at court for trial.
carer or support person VSS should copy the claim form and note on it that the expenses are for a carer.
- Where a child or vulnerable adult witness attends court for trial without VSS having any prior knowledge of them, VSS should bring this to the attention of their local VIA unit by email. If this is a regular occurrence VSS should escalate the matter within VSS who will discuss this with the appropriate contact in COPFS.
Routine Information Provision at Court
- VIA, VSS and SCTS staff will work together to ensure that the information and support needs of victims and witnesses are met and that special measures are available.
- Where VIA staff greet bereaved relatives or any other victims and witnesses when they arrive at court for the trial, VIA will facilitate their introduction to VSS and any other relevant agency to provide support.
- Where there is not a permanent VIA presence in the court, VIA will notify VSS in advance of their proposed attendance and the details of the victim, witness or bereaved relative whom they intend to meet. It will not normally be necessary for VIA staff to remain with witnesses or bereaved relatives all day, even in High Court cases. VSS and any other relevant agencies will be advised of any intention to deviate from the normal practice in advance.
- VSS will normally convey routine decisions made in court (but not the reasons for the decisions) to witnesses present in court. Where an explanation is sought VSS will ask for advice from VIA or other COPFS staff. VIA or other COPFS staff will normally provide explanations and give reasons and other information to witnesses in accordance with the Access to Information Protocol- A Guide for Victims and Witnesses. For a link to this please see Annex A.
- VIA will provide information about decisions made in court (including bail, adjournments, verdicts and sentences) to all victims and witnesses who fall within their remit, even where these decisions have been previously conveyed by a VSS representative at court. In non-VIA cases COPFS staff will only provide such information on request.
- There are VIA High Court Officers permanently based at Edinburgh and Glasgow High Courts. VIA High Court officers will also be present within other court buildings during a High Court sitting there. They will normally act as the main link between the Advocate Depute, the High Court Sitting Manager and witnesses once the trial has started. VSS should, where possible, discuss any issues relating to witnesses with the VIA High Court Officer in order that VIA can raise them with the Advocate Depute.
- In High Court cases, any documentation provided by witnesses or issues raised by witnesses to VSS which may affect the case should be directed by VSS to the VIA High Court Officer or Sitting Manager (where VIA is not present). VSS should only approach Advocate Deputes if neither VIA nor the Sitting Manager is available in these circumstances.
- In the sheriff court in both summary and solemn matters the trial Depute and VSS should, where practicable, introduce themselves to one another prior to the start of court business. Thereafter the Depute will advise the VSS of any particular issues e.g. change to the running order of cases; likely
The Criminal Procedure (Scotland) Act 1995 – Children and Deemed Vulnerable Witnesses
- For cases reported to the Procurator Fiscal on or after the 1st^ September 2015, child witnesses (aged under 18 at the commencement of proceedings) and adult witnesses who are deemed to be vulnerable are entitled to one or more standard special measures. In summary cases commencement of proceedings is the date of service of the complaint. In solemn cases this refers to the date of service of the Indictment. If cases are deserted and subsequently re-raised it is the date of service of the new complaint or Indictment that applies.
- Adults who are deemed to be vulnerable in terms of the Act are those who are alleged to be victims of: Sexual offences (offence listed in any of paragraphs 36 to 59ZL of Schedule 3 to the Sexual Offences Act 2003), Link in Annex A; Trafficking for prostitution (an offence under section 22 of the Criminal Justice (Scotland) Act 2003); Trafficking for exploitation (an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004; an offence, the commission of which involves domestic abuse; an offence of stalking.
- The following are the standard special measures which child and deemed vulnerable witnesses are entitled to: Use of a live television link either from the court building or from a remote site; Use of a screen; A supporter.
- In addition the Act provides for special measures which are non-standard and can be requested but which there is no entitlement to: Evidence in chief in the form of a recorded prior statement; Evidence taken by a commissioner (this is now a standard special measure for a child under the age of 18 in all High Court cases – see paragraph 95 onwards); Excluding the public from the court while the witness gives evidence (closed court).
- The views of a witness for whom special measures are being applied, and the parent (or guardian) of a child witness, must be considered when deciding which special measure(s) will be applied for.
- For a child or deemed vulnerable witness, if a standard special measure only is being applied for, the views of the witness (and those of the parent
or guardian of a child witness) need not be included in the Vulnerable Witness Notice.
- If a non-standard special measure is being applied for (or the use of no special measures) the views of the witness (and those of the parent or guardian of a child witness) must be included in the notice.
- VIA staff are responsible for referring witnesses to information on special measures for children, young people and information for the parents of child witnesses. They proactively seek the views of children and their parents in relation to special measures.
- A Vulnerable Witness Notice must be lodged with the Court in relation to any child or deemed vulnerable witness for the use of standard special measures, for the use of non-standard special measures, a combination of standard and non-standard special measures, or for the giving of evidence without special measures. It may be that a child witness does not wish any special measures and their parent (or guardian) expresses the same view.
- Where a child and their parent (or guardian) cannot be contacted, or they do not engage with COPFS, default special measures should be applied for: Children aged under 12 – live television link and VSS supporter; Children aged 12- 15 – screens and VSS supporter; Children aged 16 - 17 – VSS supporter.
- For children aged 7-11 in cases involving certain violent or sexual offences, the following default special measures should be applied for (where the parents (or guardians) cannot be contacted or do not engage with COPFS): Live television link and VSS supporter with arrangements made for the link to take place from a remote site; or Evidence taken by a commissioner (depending on circumstances of the case).
- For adult victims who are deemed to be vulnerable and entitled to use a special measure, and where the victim cannot be contacted or they do not engage with COPFS, default special measures should be applied for: Victims of trafficking for exploitation or trafficking for prostitution – live television link and VSS supporter; Victims of domestic abuse, sexual offences or stalking – screens and VSS supporter.
- COPFS has agreed that in summary cases, the Vulnerable Witness Notice will be lodged at least one week prior to the Intermediate Diet where possible. Vulnerable Witness Notices and Applications must be lodged no
Offences in terms of and section 3 of the Prohibition of Female Genital Mutilation (Scotland) Act 2005 Attempts to commit any of the above listed offences
- This requirement applies to relevant High Court cases where the accused appeared on petition on or after 20 January 2020. If there has been no appearance on petition by any accused person it applies in respect of which the indictment is served on or after 20 October 2020.
- In these cases evidence taken by commissioner and evidence by way of a prior statement are standard special measures for the evidence of children aged under 18. In qualifying cases COPFS will apply for the use of either or both of these standard special measures depending on the particular evidential circumstances of the case.
- VIA staff should ensure that the views of witnesses and their parents/persons with parental responsibilities are canvassed and noted. If the rule requiring pre-recording applies but a witness expresses a wish to give evidence at the trial it will be important to ascertain why they wish to do so in order to allow the court to assess whether that would be in the witness’s best interests.
- Should one of the exceptions to the rules requiring pre-recording of evidence apply the Vulnerable Witness Notice will specify that the rule requiring pre-recording applies and then explain why it is considered that one of the exceptions applies. The notice will go on to specify the alternative special measures which are sought to enable the witness to give evidence.
Other Vulnerable Adult Witnesses
- There is no automatic entitlement for other adult witnesses to give their evidence with the help of a special measure. It is for the court to decide whether an adult witness can give their evidence using any special measure(s).
- Section 271(1)(b) of the Criminal Procedure (Scotland) Act 1995 provides that a person who is not a child or deemed vulnerable witness is a vulnerable witness where there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of: mental disorder (within the meaning of Section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003); fear or distress in connection with giving evidence at the trial; or where there is considered to be a significant risk of harm to the person by reason only of the fact that the person is giving or is to give evidence in the proceedings.
- The reference to the quality of evidence relates to the quality in terms of completeness, coherence and accuracy.
- COPFS has a duty to lodge a Vulnerable Witness Application, where it is considered: (a) that the witness is likely to be a vulnerable witness; and (b) a special measure, or combination of special measures, ought to be used for the purpose of taking the witness’s evidence.
- Potentially vulnerable adult witnesses may be identified: By the police; By COPFS staff from information contained in the police report or police statements; By VSS; Self-referral by the witness or referral by a representative (e.g. care worker, social worker) on receipt of the witness citation; or By other agencies or organisations.
- Following the identification of a potentially vulnerable adult witness, VIA will attempt to make personal contact with the witness to explain the process, assess any vulnerability (and its impact on the witness’s ability to give evidence) and discuss which, if any, special measures might be appropriate.
- The timescales for lodging and intimating the granting of Vulnerable Witness Applications are the same as those that apply to Vulnerable Witness Notices.