Independent legal advice provides valuable benefits for complainers - Tony Lenehan

There would be merit in widening the access of complainers to legal advice beyond that proposed in the Victims, Witnesses and Justice Reform (Scotland) Bill, says ​Tony Lenehan

On the afternoon of 23 April, just as the Victims, Witnesses and Justice Reform (Scotland) Bill met with a markedly poorer reception in Holyrood than the government hoped, I was at the University of Glasgow, participating in an international workshop on independent legal representation (ILR) and advice for complainers in serious sexual offence trials.

In the Emma Ritch Law Clinic at the University, there exists a groundbreaking resource already providing complainers with advice on legal matters thrust upon them by the justice system, albeit not yet in relation to the trials themselves. Eamon Keane, principal solicitor at the clinic, and Jacqui Kingham, professor of Law and Social Change at the University, brought together at the workshop academics from around the UK, Ireland, Australia, New Zealand and elsewhere to explain and explore the existing schemes in different jurisdictions around the globe.

A common theme was the tangible and valuable benefits which flowed from providing complainers with access to expert independent legal advice (ILA) throughout their journey, through the criminal justice system. We heard from complainers whose experience had been transformed by it, for the better. For many complainers, although there was no metric to assess whether the ILA altered verdicts, they were content that the availability to them of a legal expert through proceedings restored to them much of the sense of lost agency that non-ILA equipped complainers lament.

Tony Lenehan KC, President of the Criminal Bar Association

All Scottish complainers are currently without the benefit of ILA at trial, and have ILR only in the rare event that the Crown or defence ask the Court to provide access to medical; or other sensitive material belonging to them.

The Victims’ Bill includes some small promise of extending ILR, but limited to that pre-trial stage where sensitive evidence admissibility arguments occur (what lawyers refer to as s.275 applications – the ‘rape shield’). In the submissions to the Scottish Government during consultation in the lead up to the Bill, and again at Committee stage, it was suggested – not least by our association – that there would be benefit in widening the access of complainers to legal advice beyond that proposed in the Bill.

At the risk of offending new wave pop fans from the 1980s, what struck me was the synchronicity of the Bill’s rough passage and the strong evidence I was hearing at the workshop for providing real improvements in complainers’ experiences in a readily deliverable form.

I therefore wonder if the Scottish Government might see merit in trading the widely doubted benefit of an incendiary juryless trial pilot nearly half a decade in the future (the end of 2028) for readily deliverable, widespread help for complainers in the form of providing longer term ILA for their journeys through our courts? It could be done quickly. The resource and experience of the Emma Ritch clinic at Glasgow leads the way and I have no doubt would be an invaluable resource for roll out advice.

Flexibility is often a greater sign of strength than rigidity. There are positives in the Bill which, respectfully, are not worth perilling on a juryless trial pilot. But will anyone listen?

Tony Lenehan KC, President of the Criminal Bar Association