The Victims’ Rights (Scotland) Regulations 2015

Explanatory note

Reproduced verbatim from the instrument as published on legislation.gov.uk (Crown Copyright, Open Government Licence v3.0). The note is prepared by the responsible government department and is not part of the instrument itself.

These Regulations implement, in part, Directive 2012/29/EU of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime. The Regulations amend the Victims and Witnesses (Scotland) Act 2014 (“the 2014 Act”) using the powers in section 2(2) of the European Communities Act 1972 and they extend to Scotland only.

In order to confer rights on a victim both prior to and following the conviction of the person accused of the offence and to avoid any conflict with the presumption of that person’s innocence, the Regulations refer to a victim as a person who is or appears to be a victim in relation to an offence or alleged offence. Regulation 17 of the Regulations adds a definition of “competent authority” to section 32 of the 2014 Act and this term is used throughout the amendments made by the Regulations.

Regulation 2 inserts new section 1A into the 2014 Act which creates a list of general principles in addition to those currently in section 1 of the Act. The persons who must have regard to the general principles in section 1 of the 2014 Act must now also have regard to the section 1A general principles in carrying out functions in relation to a victim.

Regulation 3 inserts new section 3A into the 2014 Act. Section 3A obliges a competent authority to provide a complaints process by which a victim may challenge an alleged breach of the victim’s rights under the 2014 Act or an alleged breach of the authority’s obligations under the Act. This obligation does not apply where the competent authority is subject to an existing statutory complaints process which enables the types of complaint described in subsection (1).

Regulation 4 inserts new sections 3B to 3D into the 2014 Act. Section 3B obliges the Scottish Ministers to prepare, publish and keep under review the Victims’ Code for Scotland (“the Code”). The Code must include the various heads of information about victims’ rights listed in subsection (1)(a) to (k) and any other information the Scottish Ministers consider relevant. The Code may either include this information directly or guide the reader as to where this information can be accessed. The Scottish Ministers are obliged to translate the Code into other languages on request from a competent authority or a victim (subsection (4)) and must keep the Code under review (subsection (5)).

Section 3C creates a right for victims to receive a copy of the Code and other information about victims’ rights. Subsection (1) obliges the chief constable of the Police Service of Scotland (“the chief constable”) to ensure that victims are informed of their right to request, from any competent authority, a copy of the Code and other information relating to victims’ rights. Where a victim requests a copy of the Code, the competent authority is obliged to provide a copy of the Code or advise the victim where a copy of the Code may be obtained (subsection (3)). Where a victim requests information relating to victims’ rights, the competent authority must provide the victim with information the authority considers relevant to the request and direct the victim to any other competent authority which may hold or be able to access information relevant to the request (subsection (5)).

Section 3D makes provision for a competent authority to facilitate the referral of victims to providers of victim support services. Subsection (1) obliges the chief constable to ensure that a victim is informed of the right to request, from any competent authority, a referral to providers of victim support services and the right to contact providers of victim support services directly without referral. Subsection (2) obliges a competent authority to refer a victim to providers of victim support services on the request of the victim. Subsection (5) provides a definition of victim support services.

Regulation 5 inserts new sections 3E and 3F into the 2014 Act. Section 3E provides a right for victims to understand and be understood in the context of certain forms of contact and communication with competent authorities. Section 3E(2) obliges a competent authority to take measures to assist a victim to understand information given to the victim by the competent authority and to be understood in the victim’s interaction with the competent authority. Subsection (4) obliges a competent authority to ensure that communications with a victim are as clear and easy to understand as possible and take into account the personal characteristics of the victim. Subsection (6) obliges a competent authority, on first contact with a victim, to allow the victim to be assisted by a person of the victim’s choice where the victim requires assistance to communicate. The obligation in subsection (6) does not apply where the competent authority considers that it would be contrary to the interests of justice or assistance is required for the purposes of the person giving evidence in court, where other general assistance for victims is available.