03 November 2023
Legal Services Agency Consultation Responses
Legal Services Agency has recently been invited to contribute to two important consultations due to our expertise in the areas of Criminal Injuries Compensation and Human Rights. We remain committed to ensuring social justice is available to those who might otherwise find it difficult to access legal assistance and as such, use consultations as an opportunity to address aspects of the law which may present barriers to accessing this assistance.
Criminal Injuries Compensation Scheme Review: Additional Consultation 2023
In July, the government published an additional public consultation on potential reforms of the scope and time limits of the Criminal Injuries Compensation Scheme, focusing on the Independent Inquiry into Child Sexual Abuse. The Inquiry has made recommendations for the Criminal Injuries Compensation Scheme to recognise other forms of child sexual abuse, including online facilitated abuse and increase the time limit for applications relating to child sexual abuse to seven years, from the current two year time limit.
LSA firmly believes that the Scheme should be available for all crimes of violence. This should include both physical contact crimes or non-contact crimes. Therefore it should include all forms of child sexual abuse, for example, exposing or flashing, exposing a child to pornography and forcing a child to take part in sexual activities or conversations online or through a smartphone, among other offences.
As with contact crimes, non-contact offences can result in direct significant injury to a victim and lead to many of the same consequences that a contact crime may have.
Whilst it is of course essential that children are compensated under the Scheme for non-contact offences to which they are victims, LSA considers it vital that adults are included as well. For example, flashing, exposing or undressing in front of an adult or forcing an adult to watch pornography can have highly distressing consequences on the victim.
At LSA we ensure our clients know that they are not to blame for the violence they have experienced and we do all we can to avoid further traumatising our clients. It can be very upsetting for a victim to learn that they are too late to make an application to the Criminal Injuries Compensation Authority. It is important that discretion is allowed for late applications in exceptional circumstances. Victims of crime are often extremely vulnerable and may continue to experience trauma as a result. Some victims find it extremely difficult to progress an application due to their specific circumstances and some are not given direct information and advice on how to make an application for compensation until it is too late. In some cases, the true injury is unclear within two years of attaining the age of 18 and more time may be needed to identify the true extent of the injury suffered. Therefore, LSA has submitted to the consultation that the time limit be extended and discretion for late applications be allowed in all appropriate cases.
Human Rights Bill Consultation
We were pleased to submit a joint response with Scottish Association of Law Centres (SALC) led by our colleagues at Just Right Scotland alongside our own response.
As with all members of SALC, LSA works daily with people who struggle to access justice when they experience breaches of their human rights within the current legal system in Scotland and they require to have proper access to justice. There are a number of well publicised barriers to accessing justice in Scotland including: lack of knowledge and information on rights and available remedies; the complex nature of processes and proceedings; prohibitive deadlines; increasingly excessive costs; and lack of provision of advice and representation.
It is essential that there are effective remedies in place to address these barriers. The Bill proposes remedies which go no further than what the current legal system offers. As part of this, the barriers in accessing justice require to be addressed in a more meaningful manner, including the provision of Legal Aid, and we are concerned that the Bill does not commit to addressing the need to reform Legal Aid.
The Bill discusses the wish to build existing complaint mechanisms and other extra-judicial remedies to minimise the need to revert to the Courts. We propose a specific statutory right of appeal and/or enforcement at the lowest level possible for enforcement and review, with this remedy being separate from Judicial Review. Strong consideration should be given to whether a specialist Tribunal be set up to deal with human rights in Scotland, similar to the Mental health Tribunal for Scotland or the Housing and Property Chamber, to ensure access to justice. Currently, the process of enforcing human rights is predominantly within the Court of Session.
LSA, as with all members of SALC, do not believe that having Judicial Review as the sole Court remedy is effective and the layers of unnecessary bureaucracy proposed do nothing but deter people from raising their human rights complaints.
Law Centres, such as Legal Services Agency, have played a significant role in representing people whose human rights have been breached. The current complaints procedures are inaccessible for a vast number of the population, especially those with disabilities and mental illness. Therefore, this Bill does not go far enough in how it plans to make effective changes.