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Lord Macaulay of Bragar: From this side of the Chamber this amendment obtains a modified amount of support. There is no doubt that everyone in society is anxious that the victim should always be considered right through the judicial process. There is equally no doubt that it has taken a long time for the victim to be recognised as an integral part of the process and not just as an artefact within the process.

One of the difficulties in Amendment No. 86 might be the use of word "impact", which perhaps carries with it several connotations which the amendment could do without. Perhaps it might simply read "victim statements". Otherwise it suggests that what the victim tells the court will have an impact one way or another. If it has an impact and there is no provision for the judge in a particular case to say what element of the sentence imposed is attributable to the victim impact statement, another spectre is raised of appeals being taken against sentence on the basis that the judge was unduly swayed by the victim statement.

There is also the question of the cross-examination of the evidence that is being presented to the court. I know that subsection (5) of Amendment No. 86 obliges the prosecutor to serve the statement on the accused,

However, there is no provision that, having received that, the accused can then serve notice on the prosecutor that he intends to lead a multiplicity of witnesses, as was perhaps intended in the case to which the noble and learned Lord has already referred.

In speaking at this stage, I am grateful that, as the noble Earl indicated, he put the amendment before the Committee perhaps as a pipe-opener to the Committee becoming more involved in debating the issue of the victim within the criminal justice system.

What troubles me and a number of other people is that, by the time the case comes to court, the victim—and particularly a young victim—perhaps of a sexual assault, of which, as we all know far too many cases are coming to the fore these days, may have received counselling for a year. That victim may very well be on the road to recovery. If this amendment were to stand in its present form, it would mean that the prosecutor would have to contact the victim—perhaps it might be more appropriate to say an adult victim—who might be receiving counselling. It is well known that reliving the

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dramatic events of assault can set a person on the downward path back to square one. I wonder whether it might not more appropriately be made clear to a victim, and made a part of statute, that the victim should always have the right to contact the court should he or she so desire. That can be communicated to the victim through the various organisations that now exist throughout the United Kingdom. There are plenty of social workers who could become involved to advise the person of the right to contact the prosecutor if he or she so wishes prior to the case being dealt with. There are counsellors; and there is also a victim support organisation which deals now with many victims—in Scotland in the past year it dealt with 40,000.

The received wisdom, as was brought out in a poll, is that, generally speaking, victims do not want to take part in the retribution process. Basically, they do not want to be involved at the end of the prosecution in the sentencing. I do not say that this happens in all cases, but mainly they just want to forget about it.

It is also always open to the court, when considering sentence, to ask the prosecutor if he can give or obtain further information on the condition of the victim. Indeed, I was involved recently in a case where that was done. The judge insisted that he wanted to know how the victim was. The advocate depute then advised him fully as to the result of the assault.

One other matter which I raise merely in passing is that Amendment No. 86 states:

    "the prosecutor when moving for sentence shall, if possible, place before the Court a victim impact statement".

What constitutes the "possible" and what constitutes the "impossible" is not stated. We may get, as it were, a dual standard of justice whereby the prosecutor may say that in a particular case a victim impact statement will not be sought and in another case says that it will. Depending on the nature of the statement, differing standards of justice may be applied in the sentencing. In a case where a person has died, there is the question as to who is the victim. The victim is the body, but the victims in murder cases are the immediate family and even the extended family. In a murder case it may not make much difference, but nonetheless there is a victim.

I am not very happy about victim involvement at all in relation to direct involvement in sentence, even so far as saying to the judge that he should exercise leniency. That is for the judge to say.

The amendments at the hand of both Members of this Committee are well-intentioned and probably necessary in order to put some pressure into this particular area of criminal law in Scotland. It would be interesting to know whether the Government would be prepared to constitute a working party to look into the role and scope of the victim in assault cases within the categories that were defined by the noble and learned Lord, Lord McCluskey, as being applicable in his amendment.

The Minister of State, Scottish Office (Lord Fraser of Carmyllie): This has been a very interesting and important debate. I am particularly grateful to the noble and learned Lord, Lord McCluskey, for his contribution. Not only did he have a number of very

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innovative and interesting ideas to put forward, but he brought to his argument a comparative perspective of which I believe few of us would have comparable experience.

As the noble and learned Lord expressed in general terms, and as has been expressed in general terms by those who contributed to the debate, it is absolutely right that we should have a proper regard for victims in our criminal justice system. As the noble and learned Lord pointed out, if we do not do so we take the grave risk that in future they will not be willing participants in the process of justice. I have no doubt that there has been a sea change in attitude and that must be fostered further. I hope that the Government have indicated how important that is by giving extended funding now to victim support services. In the past year we spent some £878,000 on victim support in Scotland, whereas just over a decade ago virtually nothing was spent.

I am sure that those who have been victims of crime in Scotland in the past would also have complained about such practical matters as the accommodation that was provided for them when their case came to court. They often had to share witness rooms with friends or relatives of the accused and often found themselves in a state of some horror and terror before they even entered court. I have no doubt whatsoever that we should give a proper emphasis to the position of victims and do all that we can to alleviate the difficulties that they encounter.

The noble and learned Lord, Lord McCluskey, was right to point out that as things stand at the moment there is a considerable volume of information about the impact on victims contained in reports which the police make to the procurator fiscal; and, in cases in which the procurator fiscal undertakes it at precognition, further information relating to that impact will be obtained. That information, so far as it is relevant to the proceedings, is generally communicated by the Crown to the courts. As the noble Lord, Lord Macaulay, said, it seems to be a growing experience that, if that information is not up to date, the court will regularly ask for it to be expanded upon or for fresh information to be provided.

I hope that with that background it will be possible to improve the position in Scotland. I noted with interest that the noble and learned Lord brought forward this matter so that there could be a general debate on the issue. He does not seek to persuade us on the detail of his full amendment at the present time. That is important because he has, in a sense, by indicating that he does not insist on all the detail, removed a number of the worries that I had about the amendment. It had concerned me that this could be an extremely costly exercise which would duplicate effort and waste resources. I am sure that he appreciates the circumstances in which such waste might occur.

I noted with interest, if I understood him correctly, that what he is now driving at is that if such a victim impact statement is to be prepared, it should be prepared as closely as possible to the point of sentencing and—he will correct me if I am wrong—after the conviction has been secured. If it is prepared at an earlier stage, a number of difficult practical problems will occur.

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First, the information may be out of date. Let us consider an impact statement for which the charge is one of serious assault and rape. At the end of the day, the jury may come back with a verdict of serious assault only. Considerable detail may be contained in a victim impact statement prepared before the trial dealing with the issues relating to the rape charge on the indictment. That example seems to me to underline the great difficulties that we might encounter if we try to take this matter forward without careful thought. On a number of occasions in my experience it has come about that the victim does not much care for the account given by the prosecutor, which varies not because the matter is not being looked into with sufficient attention to detail but because he understands the legal framework in which the statement has to be made. If the rape charge is not secured by a conviction, he cannot bring forward such information. In those circumstances there can often be irritation and indeed anger on the part of the victim in the case.

I want to read very carefully what has been said in the course of this debate. But it seems to me that what is probably most important for victims as trials go forward is that they should be fully advised of what is going on. It is frustrating and causes anger to discover that a plea of guilty has been accepted and they have been told nothing of what is going on. I hope that the work that my noble and learned friend the Lord Advocate and his Crown office are undertaking, which should mean that the system is providing more information to the victim, will indeed prove to be a successful exercise.

What has come through are the comments of such individuals as Alison Paterson, who is known to many Members of the Committee as the director of Victim Support in Scotland. She was quoted in the Scotsman newspaper of 7th January as saying that she took the view that:

    "there's absolutely no evidence to substantiate the view that victims wish a role in sentencing ... This cannot address the problems which cause victims distress in the criminal justice process".

Her focus of interest would be the provision of information to victims rather than bringing them into the sentencing process. I understand very well why the noble and learned Lord is so reluctant to see the victim coming into court at a late stage to try to influence sentencing. The wish to have information about what is going on is the greater desire.

Given what the noble and learned Lord said about his recent experience and knowledge of the United States, perhaps I may refer to an article in the Criminal Law Review of 1993, in which Professor Andrew Ashworth of London University assessed the use of victim impact statements in various overseas jurisdictions. He concluded:

    "The right to submit a victim impact statement may be high in profile but low in improving genuine respect for victims. We should hesitate and reconsider before going further in this direction".

I do not believe that we should refuse to examine this matter, but for the reasons that I have given, and a number of them were implicit in the Committee's remarks, I believe that we should be very careful before introducing into the system an arrangement which might

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prove extremely costly in resource terms and which, at the end of the day, might not be of as much value to the sentencer as we would wish.

I have no doubt that questions about the role of the victim, how the victims are to be supported and whether we should go along the line of victim impact statements will form a central part of our debates on the criminal justice system. I am grateful to the noble Earl for introducing this amendment and giving us the opportunity to consider this very important matter.

5.30 p.m.

The Earl of Mar and Kellie: The amendment called for new emphasis as regards concern for the victim. I have been very pleased by the discussion that we have had and very impressed by it. Personally, I see no role for the victim in sentencing. To go back to first principles, we have a court system to take away from the victim the need to seek personal revenge in any form.

With regard to victim impact statements, they could be called for when the social inquiry report is being prepared. At least a second statement could be requested. That would be particularly important when a probation order was being considered by the court. There is always a time lag between the commission of the offence and conviction. In a strange way that may be no bad thing. The time lag allows the offender to be shown the difficult stages that the victim went through in terms of recovery from the impact of the offence.

Finally, I hope that this provision could be considered not just for victims of assault but also for victims of house break-ins when the offender has committed the offence too many times. It would be helpful to obtain information from householders as to how they reacted in the ensuing months.

This has been a useful discussion. I beg leave to withdraw the amendment.

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