Victims, Witnesses, and Justice Reform (Scotland) Act 2025

Part 1 Victims and Witnesses Commissioner for Scotland

Establishment

1 Victims and Witnesses Commissioner for Scotland

(1) The office of Victims and Witnesses Commissioner for Scotland is established.

(2) Schedule 1 makes further provision about the office.

Functions and powers

2 Functions

(1) The Commissioner’s general function is to promote and support the rights and interests of victims and witnesses.

(2) In exercising the general function, the Commissioner is to—

(a) engage, in such manner as the Commissioner considers appropriate, with—

(i) victims and witnesses,

(ii) persons providing victim support services,

(b) take such steps as the Commissioner considers appropriate to raise awareness of and promote—

(i) the interests of victims and witnesses,

(ii) the Victims’ Charter (see section 9),

(c) monitor compliance with—

(i) standards of service set and published under section 2 of the Victims and Witnesses (Scotland) Act 2014 (“the 2014 Act”),

(ii) the Victims’ Code for Scotland prepared and published under section 3B of that Act,

(d) consider the provision of information to victims and other persons and the making of representations under Part 2 of the Criminal Justice (Scotland) Act 2003,

(e) promote best practice, in particular trauma-informed practice, by—

(i) criminal justice bodies,

(ii) persons providing victim support services,

(f) undertake and commission research in order to—

(i) produce the Commissioner’s annual report under section 18,

(ii) make recommendations, in relation to any matter relevant to the Commissioner’s general function, to criminal justice bodies and to persons providing victim support services.

3 Civil function

(1) The Scottish Ministers may, by regulations, amend the Commissioner’s general function to include the civil function.

(2) The civil function is to promote and support the rights and interests of persons involved in proceedings other than criminal proceedings.

(3) Regulations under subsection (1) may, in particular—

(a) contain a definition, for the purposes of the civil function, of—

(i) proceedings other than criminal proceedings,

(ii) persons involved in proceedings other than criminal proceedings,

(b) provide for the exercise of the civil function to include—

(i) engagement, in such manner as the Commissioner considers appropriate, with persons involved in proceedings other than criminal proceedings or providing support to persons involved in such proceedings,

(ii) taking such steps as the Commissioner considers appropriate to raise awareness of and promote the interests of persons involved in proceedings other than criminal proceedings,

(iii) promoting best practice, in particular trauma-informed practice, by persons involved in the administration and management of proceedings other than criminal proceedings and by persons providing support to persons involved in such proceedings,

(iv) undertaking and commissioning research in order to include information relating to the exercise of the civil function within the annual report under section 18,

(v) undertaking and commissioning research in order to make recommendations, in relation to any matter relevant to the civil function, to persons involved in the administration and management of proceedings other than criminal proceedings and persons that provide support to persons involved in such proceedings,

(c) modify this Part to include within the Commissioner’s functions and powers—

(i) persons involved in proceedings other than criminal proceedings,

(ii) the administration and management of proceedings other than criminal proceedings and persons involved in such administration and management,

(iii) persons providing support to persons involved in proceedings other than criminal proceedings.

(4) Regulations under subsection (1) may—

(a) make any incidental, supplementary, consequential, transitional, transitory or saving provision the Scottish Ministers consider appropriate for the purposes of, in connection with or for giving full effect to this section,

(b) modify this Part (including schedules 1 and 2).

4 Engagement

(1) In exercising the Commissioner’s function under section 2(2)(a), the Commissioner—

(a) may establish such groups as the Commissioner considers appropriate,

(b) must pay particular attention to groups of victims and witnesses who do not have other adequate means by which they can make their views known.

(2) The Commissioner must prepare and keep under review a strategy for engaging with victims, witnesses and persons providing victim support services in accordance with section 2(2)(a) and this section.

5 Advisory group

(1) The Commissioner may establish and maintain an advisory group to give advice and information to the Commissioner about matters relating to the Commissioner’s functions.

(2) The members of any such advisory group are to be such persons as the Commissioner may determine, subject to the approval of the Parliamentary corporation as to—

(a) the number of members,

(b) the persons to be appointed.

(3) The Commissioner may pay to the members of any such advisory group such remuneration and allowances (including expenses) as the Commissioner, with the approval of the Parliamentary corporation, may determine.

(4) The procedure of any such advisory group is to be such as the Commissioner may determine.

6 Power to work with others

(1) The Commissioner may, in the exercise of the Commissioner’s functions—

(a) work with a person mentioned in subsection (2), on such terms as may be agreed with the person,

(b) when requested by such a person, provide assistance to the person,

(c) consult such a person.

(2) The persons are—

(a) the Scottish Parliament,

(b) the Scottish Ministers,

(c) the Lord Advocate,

(d) the chief constable of the Police Service of Scotland,

(e) His Majesty’s Inspectors of Constabulary in Scotland,

(f) the Scottish Police Authority,

(g) the Police Investigations and Review Commissioner,

(h) the Information Commissioner,

(i) the Scottish Human Rights Commission,

(j) the Commissioner for Children and Young People in Scotland,

(k) such other persons as the Commissioner considers appropriate.

7 General powers

(1) The Commissioner may do anything which appears to the Commissioner—

(a) to be necessary or expedient for the purposes of, or in connection with, the performance of the Commissioner’s functions, or

(b) to be otherwise conducive to the performance of those functions.

(2) Despite the generality of subsection (1), the Commissioner may pay fees and allowances to a person for advice, assistance or any other service only with the approval of the Parliamentary corporation.

8 Restriction on exercise of functions

(1) The Commissioner may not exercise any function in relation to an individual case.

(2) But subsection (1) does not prevent the Commissioner considering individual cases and drawing conclusions about them for the purpose of, or in the context of, exercising a function.

(3) The Commissioner may not exercise any function in such a way as to adversely affect any protection relating to the independence of decision-making by a criminal justice body.

(4) The Commissioner may exercise the Commissioner’s functions in relation to victims’ and witnesses’ experiences that occurred prior to the coming into force of this section, but only if and to the extent that the experiences are relevant to the exercise of the Commissioner’s general function.

(5) For the purposes of subsection (1), “individual case” includes—

(a) a particular victim or witness,

(b) the bringing or conduct of particular proceedings,

(c) anything done or omitted to be done by a person acting in a judicial capacity or on the instructions of or on behalf of such a person.

Victims’ charter

9 Victims’ charter

(1) The Commissioner must—

(a) prepare and publish a charter for victims (to be known as “the Victims’ Charter”) before the expiry of the period of 12 months beginning with the day on which this section comes into force,

(b) lay a copy of the charter before the Scottish Parliament,

(c) review the charter at least once during each period of 12 months beginning with the day on which the charter was published and, thereafter, within 12 months of the charter last being reviewed,

(d) revise the charter as the Commissioner considers appropriate following such a review,

(e) as soon as reasonably practicable after revising a charter, publish the charter as revised.

(2) The charter—

(a) must set out—

(i) a description of the criminal justice system,

(ii) the interactions that it is possible for a victim to have with the system,

(iii) the communications which a victim will receive in the course of those interactions,

(iv) the rights of a victim in those interactions,

(v) the mechanisms available to a victim for upholding those rights,

(b) may include such other information as the Commissioner considers appropriate.

(3) The persons invited by the Commissioner to participate in the preparation of the charter—

(a) must include—

(i) victims,

(ii) persons providing victim support services,

(iii) criminal justice bodies,

(b) may include such other persons as the Commissioner considers appropriate.

(4) The Commissioner may prepare more than one charter in order to make different provision for different categories of victim or for victims of different types of offence, and references to the charter are to be construed accordingly.

(5) Paragraphs (b) to (e) of subsection (1) and subsections (2) to (4) apply to a revised charter as they apply to the charter prepared under subsection (1)(a).

(6) For the purpose of subsection (1)(a), it is immaterial that anything done by way of preparation was done before the Bill for this Act was passed or after that but before this section comes into force.

Strategic plan

10 Strategic plan

(1) The Commissioner must, in respect of each 3 year period—

(a) prepare and publish a strategic plan, and

(b) lay a copy of the plan before the Scottish Parliament before the beginning of the 3 year period to which it relates.

(2) Before publishing a strategic plan, the Commissioner must consult on a draft of it with—

(a) the Parliamentary corporation, and

(b) such other persons as the Commissioner considers appropriate.

(3) A strategic plan is a plan setting out how the Commissioner proposes to perform the Commissioner’s functions during the period covered by the plan and, in particular, setting out—

(a) what the Commissioner’s objectives and priorities are for that period,

(b) how the Commissioner proposes to achieve them,

(c) what the timetable is for doing so, and

(d) what the estimated costs are of doing so.

(4) The Commissioner may, at any time, review and revise a strategic plan.

(5) Where the Commissioner revises a strategic plan—

(a) subsections (1) to (4) apply to the revised strategic plan as they apply to the original strategic plan,

(b) the reference in subsection (1) to the 3 year period is to be read as a reference to the period to which the revised strategic plan relates.

(6) In this section, “3 year period” means—

(a) the period of 3 years beginning with 1 April next following the coming into force of this section, and

(b) each subsequent period of 3 years.

Investigations

11 Carrying out investigations

(1) The Commissioner may carry out an investigation into whether, by what means, and the extent to which a criminal justice body has, or has had, regard to the rights, interests, and views of victims and witnesses in making decisions or taking actions that affect those victims and witnesses.

(2) The Commissioner may carry out an investigation under subsection (1) only if the Commissioner, having considered the available evidence on, and any information received about, the matter, is satisfied on reasonable grounds that the investigation would not duplicate work that is properly the function of another person.

(3) The Commissioner may not carry out an investigation so far as it would relate to—

(a) the making of decisions or taking of action in particular legal proceedings before a court or tribunal, or

(b) a matter which is the subject of legal proceedings before a court or tribunal.

12 Initiation and conduct of investigation

(1) Before taking any steps in the conduct of an investigation, the Commissioner must—

(a) draw up terms of reference for the investigation, and

(b) take such steps as appear to the Commissioner to be appropriate with a view to bringing notice of the investigation and terms of reference to the attention of persons likely to be affected by it.

(2) An investigation is to be conducted in public except to the extent that the Commissioner considers that the taking of evidence in private is necessary or appropriate.

13 Investigations: witnesses and documents

(1) The Commissioner may require any person to—

(a) give evidence on any matter within the terms of reference of an investigation,

(b) produce documents in the custody or control of that person which have a bearing on any such matter.

(2) The Commissioner may not impose a requirement under subsection (1) on any person whom the Parliament could not require, under section 23 of the Scotland Act 1998, to attend its proceedings for the purpose of giving evidence or to produce documents.

(3) A person is not obliged under this section to answer any question or produce any document which that person would be entitled to refuse to answer or produce in proceedings in a court in Scotland.

(4) A representative of the Crown Office and Procurator Fiscal Service is not obliged under this section to answer any question or produce any document concerning the operation of the system of criminal prosecution in any particular case if the Lord Advocate—

(a) considers that answering the question or producing the document might prejudice criminal proceedings in that case or would otherwise be contrary to the public interest, and

(b) has authorised the representative to decline to answer the question or produce the document on that ground.

(5) The Scottish Ministers may, by regulations, make further provision in relation to the giving of evidence or the production of documents under subsection (1).

(6) In subsection (4), a “representative of the Crown Office and Procurator Fiscal Service” means—

(a) Crown Counsel,

(b) a procurator fiscal,

(c) a person employed in the Crown Office and Procurator Fiscal Service,

(d) any person duly authorised to represent or act for the persons mentioned in paragraphs (a) to (c).

14 Reports on investigations

(1) The Commissioner must, at the conclusion of an investigation, publish a report of the investigation.

(2) The report may include a requirement for the criminal justice body to respond to the report, within such period as the Commissioner reasonably requires, with a statement in writing addressed to the Commissioner setting out its reasoned response to the report.

(3) A report of an investigation must not be published until the criminal justice body which was the subject of the investigation has, to the extent that it is reasonable and practicable to do so, been given a copy of the draft report and an opportunity to make representations on it.

(4) The Commissioner must lay a copy of the report before the Scottish Parliament as soon as reasonably practicable following its publication.

Information gathering

15 Power to gather information

(1) The Commissioner may require a criminal justice body to supply information which the Commissioner reasonably requires for the purpose of determining whether that body has complied with, or is complying with—

(a) standards of service set and published under section 2 of the 2014 Act,

(b) the Victims’ Code for Scotland prepared and published under section 3B of that Act.

(2) Where a requirement is imposed under subsection (1), the Commissioner must give the criminal justice body a written notice specifying—

(a) the information, or the nature of the information, which is to be supplied,

(b) the form in which it is to be supplied,

(c) in the case of information which is to be supplied by means of a statement in person, the place at which it is to be supplied, and

(d) the particular matters in connection with which the information is required.

(3) A criminal justice body may refuse to supply information which that body would be entitled to refuse to provide in any proceedings in a court in Scotland.

(4) The Lord Advocate may refuse to supply information which concerns the operation of the system of criminal prosecution in any particular case if the Lord Advocate considers that providing the information—

(a) might prejudice criminal proceedings in that case,

(b) would otherwise be contrary to the public interest.

(5) The Commissioner may revoke any requirement imposed under subsection (1) by giving written notice to the criminal justice body to whom notice of the requirement was given.

(6) Where a criminal justice body refuses, under subsection (3), to supply information, the Commissioner may report the matter to the Court of Session for determination if the Commissioner considers that the criminal justice body was not entitled to so refuse.

(7) In this section, “information” includes unrecorded information.

16 Failure to supply required information

(1) The Commissioner may take the action mentioned in subsection (3) or (4) (or both actions) where—

(a) a requirement to supply information has been imposed on a criminal justice body under section 15(1), and

(b) the criminal justice body refuses (other than by virtue of section 15(3) or (4)), or fails without reasonable excuse, to supply the information in accordance with the terms of the notice issued under section 15(2).

(2) The Commissioner may take the action mentioned in subsection (4) where—

(a) a requirement to supply information has been imposed on a criminal justice body under section 15(1), and

(b) the Commissioner suspects the person has deliberately altered the information.

(3) The Commissioner may publicise the criminal justice body’s refusal, or failure, to supply the information.

(4) The Commissioner may report the matter to the Court of Session.

(5) After receiving a report under subsection (4), and hearing any evidence or representations on the matter, the Court may (either or both)—

(a) make any order for enforcement that it considers appropriate,

(b) deal with the matter as if it were a contempt of court.

17 Offence of Commissioner disclosing confidential information

(1) A person mentioned in subsection (2) commits an offence if—

(a) the person knowingly discloses any information which—

(i) has been obtained by or on behalf of the Commissioner for the purposes of exercising the Commissioner’s functions, and

(ii) at the time of disclosure is not, and has not previously been, in the public domain, and

(b) the disclosure is not authorised by subsection (3).

(2) The persons referred to in subsection (1) are persons who are or have been—

(a) the Commissioner,

(b) a member of the Commissioner’s staff,

(c) an agent of the Commissioner.

(3) For the purposes of subsection (1)(b), disclosure is authorised only so far as it is—

(a) made with the consent of the person from whom the information was obtained,

(b) subject to subsection (4), necessary for the purpose of enabling or assisting the exercise of the Commissioner’s functions under this Act, or

(c) made for the purposes of legal proceedings, whether criminal or civil (including information disclosed for the purposes of the investigation of any offence or suspected offence).

(4) Subsection (3)(b) does not authorise the disclosure of information which leads, or is likely to lead, to the identification of—

(a) victims,

(b) witnesses,

(c) persons suspected of committing of an offence but who have not been charged in relation to that offence.

(5) A person who commits an offence under subsection (1) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum, or

(b) on conviction on indictment, to a fine.

Annual report

18 Annual Report

(1) The Commissioner must, in respect of each financial year—

(a) prepare and publish a report on the Commissioner’s functions, and

(b) lay a copy of the report before the Scottish Parliament as soon as practicable after the end of that year.

(2) The Commissioner must give a copy of the draft report to—

(a) each criminal justice body, and

(b) any person providing victim support services who is named in the report,

not less than 5 days before publishing the report under subsection (1)(a).

(3) The report must include—

(a) a review of issues identified by the Commissioner in the financial year as being relevant to victims and witnesses,

(b) a review of the Commissioner’s activity in that year, including the steps taken to fulfil each of the Commissioner’s functions,

(c) any recommendations by the Commissioner arising out of that activity,

(d) a summary of any review and revision of the Victims’ Charter under subsection (1) of section 9 that has completed in the financial year,

(e) an overview of the activity the Commissioner intends to undertake in the financial year following the year to which the report relates.

(4) Recommendations under subsection (3)(c) may include recommendations in relation to—

(a) the provision of training to the members and employees of a criminal justice body,

(b) a person’s standards of service set and published under section 2 of the 2014 Act,

(c) the Victims’ Code for Scotland prepared and published under section 3B of that Act,

(d) trauma-informed practice,

(e) the provision of information to victims and witnesses,

(f) any other matter relating to the Commissioner’s functions.

(5) The Commissioner must—

(a) comply with any direction given to the Commissioner by the Parliamentary corporation in relation to the form and content of the report,

(b) ensure that a report does not include any information that would or might disclose the identity of an individual.

(6) The first report under this section is to relate to the period beginning on the day that this section comes into force and ending—

(a) if the financial year ends not less than 6 months after the day that this section comes into force, on the last day of that financial year, or

(b) otherwise, on the last day of the next financial year.

19 Requirement to respond to annual report

(1) Where a report under section 18 names—

(a) a criminal justice body,

(b) a person providing victim support services,

the Commissioner may, in the report, impose on the person a requirement to respond to the report.

(2) Where a requirement to respond is imposed under subsection (1), the person must provide a written statement within such reasonable period as the Commissioner specifies.

(3) The statement must set out the person’s reasoned response to the part of the report which relates to their activities.

20 Publication of responses to annual report

(1) The Commissioner must—

(a) publish any statement provided in response to a requirement to respond imposed under section 19, and

(b) lay a copy of it before the Scottish Parliament.

(2) Subsection (1) does not apply if, or to the extent that, the Commissioner considers publication and laying to be inappropriate.

(3) In particular, the Commissioner must ensure that, so far as reasonably practicable, the version of the statement which is published and laid under subsection (1) does not include any information which would not, under section 18(5), be included in a report.

(4) The Commissioner may, in such manner as the Commissioner considers appropriate, publicise a failure to comply with a requirement to respond.

Miscellaneous

21 Reports

(1) The Commissioner may publish any report, in addition to reports under sections 14 and 18, prepared by the Commissioner if the Commissioner considers it appropriate to do so.

(2) The Commissioner—

(a) must give a copy of a draft report to each criminal justice body not less than 5 days before publishing the report under subsection (1),

(b) may lay any report published under subsection (1) before the Scottish Parliament, if the Commissioner considers it appropriate to do so.

(3) The Commissioner must ensure that, so far as reasonably practicable having regard to the subject matter, a report does not name or otherwise identify an individual who has—

(a) given information to the Commissioner, and

(b) not consented to being named in the report.

22 Protection from actions of defamation

(1) For the purposes of the law of defamation—

(a) any statement made to the Commissioner has absolute privilege,

(b) any statement in the Commissioner’s report on an investigation has absolute privilege,

(c) any other statement made by the Commissioner has qualified privilege.

(2) In this section—

(a) a reference to a statement being made to or by the Commissioner—

(i) includes a statement being made to or by (as the case may be) a member of the Commissioner’s staff or an agent of the Commissioner,

(ii) does not include a statement made to or by (as the case may be) an individual when the individual is not acting in the individual’s capacity as the Commissioner, a member of the Commissioner’s staff or an agent of the Commissioner,

(b) “statement” has the same meaning as in the Defamation and Malicious Publication (Scotland) Act 2021.

Co-operation with Commissioner

23 Co-operation with Commissioner

(1) The Commissioner may request that a specified criminal justice body co-operate with the Commissioner in any way that the Commissioner considers necessary for the purposes of the Commissioner’s functions.

(2) A criminal justice body which receives a request under subsection (1) must respond to that request confirming—

(a) that it will comply with the request so far as reasonably practicable, or

(b) that it will not comply with the request and the reason for that non-compliance.

Application of public authorities legislation

24 Application of public authorities legislation

Schedule 2 amends other Acts so that their provisions apply to the office of Victims and Witnesses Commissioner for Scotland.

Interpretation of Part

25 Interpretation of Part

(1) In this Part (including schedule 1)—

• “Commissioner” means the Victims and Witnesses Commissioner for Scotland,

• “criminal justice body” means—

  (a)

  the Lord Advocate,

  (b)

  the Scottish Ministers,

  (c)

  the chief constable of the Police Service of Scotland,

  (d)

  the Scottish Courts and Tribunals Service,

  (e)

  the Parole Board for Scotland,

• “harmful behaviour by a child” means action or behaviour by a child aged under 12 which falls within section 179A(2) of the Children’s Hearings (Scotland) Act 2011,

• “offence”—

  (a)

  includes—

  (i)

  any offence, regardless of whether it is committed, or suspected to have been committed, before or after this section comes into force,

  (ii)

  conduct which would constitute an offence, whether or not a person has been charged with or convicted of an offence in relation to that conduct,

  (b)

  does not include conduct by a child in respect of which the child has been referred to a children’s hearing,

• “Parliamentary corporation” means the Scottish Parliamentary Corporate Body,

• “prescribed relative” means a relative prescribed by the Scottish Ministers by an order made under section 2(6) or 6(2)(b) of the 2014 Act,

• “victim” means a person to whom one or more of the following applies—

  (a)

  an offence, or harmful behaviour by a child, has been, or is suspected to have been, committed or carried out against or in respect of the person,

  (b)

  the person has suffered harm as a direct result of having seen, heard, or otherwise directly experienced the effects of an offence, or harmful behaviour by a child, at the time the offence or harmful behaviour occurred,

  (c)

  the person is entitled to receive information under section 16 or 16A of the Criminal Justice (Scotland) Act 2003,

  (d)

  the person is a prescribed relative of—

  (i)

  a person against or in respect of whom an offence, or harmful behaviour by a child, has been, or is suspected to have been, committed or carried out,

  (ii)

  a person who has died as a direct result of an offence, or harmful behaviour by a child,

• “victim support services” has the meaning given by section 3D(5) of the 2014 Act,

• “witness” means a person who is or appears to be a witness in respect of an offence, or harmful behaviour by a child.

(2) The Scottish Ministers may, by regulations—

(a) modify the list in the definition of “criminal justice body” in subsection (1) to add, vary or remove entries,

(b) modify the definition in subsection (1) of—

(i) victim,

(ii) witness,

(c) make any other modification to subsection (1) which the Scottish Ministers consider necessary or expedient in consequence of modifications made by virtue of paragraph (b).