The new Victims and Witnesses (Scotland) Bill has been introduced at the Scottish Parliament1, intended to give victims and witnesses more information on the progress of court cases, and compensate the victims of crime for their losses. All very laudable, but there are a few issues with the proposed legislation that should be addressed.
Starting at Section 1 a “victim or witness” is to given information about the progress and prosecution of a criminal case, also having their safety ensured and be given support. However one serious ommission here: a suspect does not have these rights, and therefore the situation could arise where a “victim” knows more about an intended prosecution than the person who is the target of that prosecution. It is not unknown for someone to deliberately make false accusations about someone to cause disruption to that persons life2 and this would give such false accuser even greater power over the suspect who is the actual victim. Giving a suspect the same rights of information would cause no loss to a genuine victim, help innocent persons who are suspected of a crime they did not commit, and give no particular benefit to someone who is actually guilty.
This brings up a point about the political discussion surrounding this Bill (and various other proposed legal changes): the terminology about “criminals” and “victims”. Someone who has suffered from a crime against them may be called a “victim” (although in some cases support groups for those who have suffered violent crimes prefer the word “survivor” – I’ll stick with “victim” here as the terminology of the Bill). In many cases it is obvious that a person is a “victim of crime”, even though who perpetrated the crime is not known; is someone is physically assaulted in the street, it is not as sometimes reported an “alleged assault”, it is an assault where someone else may be the “alleged attacker”, or there may be an “unknown attacker”. In some cases it may be reported that a person is a “victim” when no crime has in fact been committed – though possibly a civil wrong has occurred allowing them to sue for compensation.
Where someone is suspected or accused of committing a crime though, they are not necessarily a “criminal”. If they are convicted of the crime they may be a criminal, but until then the presumption of innocence applies and they should be referred to as a suspect or accused. Too many politicians (and many media outlets) when talking about generalities instead of a specific case refer to the suspect or accused as “the criminal” and implies this therefore justifies removing their rights or legal protections. Now while we have very good police and prosecutors in Scotland, they are not infallible omniscent beings who proceed only against those who have committed the crime. Of those who are taken to a criminal court, about 88% either plead guilty or are found guilty of something by the court, and about half of those not found guilty being acquitted after trial. That means that 12% are not guilty and 6% have gone through the whole criminal court procedure to vindicate themselves – that’s a not insignificant minority who need protecting. Arguably anyone who is wrongly accused or tried for a crime is themself a “victim of crime” – not the victim of wrongdoing by the police or prosecutors but of the fact that crime exists and that the criminal actions of another person have led to them being prosecuted with all the disruption of their life that brings.
So back to the Bill: section 3 provides for disclosure of information to those listed in section 1, but the test for whether information is to be released is that the “qualifying person” e.g. police must disclose it except “in so far as the qualifying person considers that it would be inappropriate to disclose”. This is so vague as to make the “right” a matter entirely for the discretion of the person holding the information. At very least one would expect “reasonably considers that…” and quite possibly some provisions about whether disclosure “may prejudice the ongoing investigation or prosecution of the crime”. As it stands if the “qualifying person” is of the opinion that it is always inappropriate that victims should be told anything, they simply don’t release any information. If the intention is to give victims et al a right to information it should be legislation as an enforceable right not a vague pious aspiration.
Proceeding through the rest of the Bill, there any many changes which will affect the conduct of various criminal court cases, but apart from noting the usual variable quality of drafting I have little to say on these until we reach section 21 which deals with “Restitution Orders”. These are a form of compensation order that can be made in cases where someone is convicted of crime of violence against a member of the emergency services, not to compensate the individual who has been the target of the violence, but to pay into a government fund to pay bodies which provide support services to such victims. It’s a bit convoluted, but as a specific form of compensation order it’s fair enough. Presumably judges will decide whether a Compensation Order for the specific victim or a Restitution Order is most appropriate. Incidentally section 20 makes it compulsory for a judge to consider a Compensation Order in all circumstances where it would be legally competent, but good judges are already doing that anyway.
The big fly in the ointment with the Bill is section 22, the “Victim Surcharge”. This is a sum to be paid by anyone who is convicted of an offence (unless an offence excepted by order of the Scottish Ministers), which the judge must impose. The funds raised from this Conviction Tax are to be paid to a Fund intended to make payments to victims and victim support groups. The objections to this are twofold.
Firstly, there is no discretion on the judge in imposing this payment requirement, hence meaning it is not a sentence on conviction, it is a straightforward tax. Although it is stated it is for victims, the judge should already have looked at the option of a compensation order to compensate any victim of the crime; there is an exception to the Surcharge where the judge has ordered payment of a Restitution Order but not where a Compensation Order has been imposed. Ironically therefore where someone of limited means is convicted, the judge may require to reduce the Compensation Order to allow payment of the Surcharge.
Also the Surcharge applies even where there is no victim. Motoring organisations have already pointed out that this will mean those convicted of Road Traffic offences such as speeding will be charged the Surcharge even though there is no victim.
This arrangement appears to have been copied directly from the same provision which currently apply in England, where it was introduced in 2007 and has since come under various criticisms there3 as it “undermines the principles of Justice and should be withdrawn on the basis that it is unfair, inefficient, ineffective and illogical” as one critic put it. One practical question is whether the administration costs in obtaining payment justify the amount raised.
As a frequent cry of the Scottish Parliament is “Scottish solutions to Scottish problems” it is disappointing to see yet again the Scottish government importing English arrangements wholesale into Scotland, especially arrangements which are already unpopular and discredited in the country of origin.4
The second concern is regarding the Fund itself. Payments out of the Fund will be discretionary, no one will be entitled to this as of right. Victims of violent crime can currently sue their attacker5 or apply to the Criminal Injuries Compensation Authority (CICA) where they can get a fixed payment of compensation for their injuries as of right. However CICA compensation payments have been reduced over time, and various types of claim being excluded altogether. The fear is that over the long term CICA would disappear and the Victim Surcharge Fund promoted as being its replacement – replacing a right with charity.
However assuming that the Victim Surcharge Fund itself will be additional too rather than a substitute for existing funds, a better way could be found to finance it. A simple solution would be to earmark a fixed percentage of all fines charged in Scotland. This removes most administration costs – a monthly remittance of this percentage of fine payments received could be paid over. To make up the loss of revenue, simply increase the standard scale of fines – these are periodically reviewed for inflation anyway. If necessary throw in some payments from funds recovered under the Proceeds of Crime provisions, and you are sorted.
So with the exception of section 22, all in all a generally beneficial act, all be it one that could be improved.
2 An extreme example of this was case of Maria Marchese. However it is not unknown in cases of spousal abuse, and other circumstances.
3 Kudos here to District Judge Tim Devas.
4 Home Information Packs anyone? Copied from England to Scotland over the objections of lawyers, surveyors and general public alike, then promptly abolished in England as being useless or even counterproductive but retained in Scotland for no discernable reason beyond possibly a disinclination to admit having made a mistake. Perhaps they could be withdrawn on basis “they have now successfully served their purpose and are now stifling economic recovery”?
5 But most criminals have no money; most rich criminals appear to be running banks or countries.