110.Section 39 introduces part 2 of schedule 3, which modifies the 2003 Act to make provision for the nomination of a person to receive information as well as or instead of the victim. This right is provided as an alternative to the existing right already in section 16ZA of the 2003 Act which allows for information to be given to a supporter, either instead of the person entitled to receive information under section 16, or as well as that person, and at the request of either the person or the supporter, subject in each case to the consent of the other. A supporter is a person to whom subsection (2) of section 16ZA applies. That subsection applies to persons of a description set out by the Scottish Ministers in regulations and providing support services to victims.
111.Paragraph 2(2)(a)(i) replaces references to “the victim” in section 16ZA with references to “P”, this is for consistency with other sections in part 2 of the 2003 Act and reflects the fact that the relevant person might be a designated person or an adult receiving information on behalf of a child victim. Paragraph 2(a)(iv) makes provision to support that change.
112.The effect of subparagraph (2)(a)(ii), (iii), and (v), taken together, is that section 16ZA of the 2003 Act is amended so that the person entitled to receive information under section 16 – whether that is the original victim of the crime, a designated person or an adult receiving information on behalf of a child victim – may choose for either a supporter or a nominated person to receive the information. They may choose for the information to be given to the supporter or nominated person either in addition to receiving it themselves, or instead of receiving it themselves. They may not choose for information to be given to both a supporter and a nominated person, however.
113.Subparagraph (2)(c) inserts a new subsection (1A) into section 16ZA. The new subsection provides that a person who is nominated must be an adult aged 18 years or older and must not be the person convicted of the offence against the victim – that is, the person to whom the information relates. Subparagraph (2)(d) makes provision to support the change from referring to “the victim” to referring to “P”. Subparagraph (2)(e) adds reference to a nominee to section 16ZA(3), meaning that the Scottish Ministers will be required to give information to a nominee unless there are exceptional circumstances which make it inappropriate to do so.
114.Subparagraph (2)(f) inserts a new run of subsections (3A) to (3F) into section 16ZA. New subsection (3A) makes provision about when a nomination ceases to be effective. This will be the case when either the nominee indicates that they no longer consent to receiving the information, or when the Scottish Ministers are made aware that the nominee has died or has become incapable of understanding the information.
115.New subsection (3B) adds an entitlement for supporters to withdraw an intimation that they have previously made under section 16ZA(1)(b). New subsection (3C) makes provision for the person otherwise entitled to receive information under section 16 to withdraw an intimation that they wish either a supporter or a nominee to receive the information, or, where a supporter made the intimation, to withdraw consent to the supporter being given that information. In any such case, the supporter or nominee would no longer receive information. The person entitled to receive information under section 16 may also make a fresh intimation – meaning they could request that the information be given to a new supporter or nominee, or they could consent to an intimation made by a new supporter under section 16ZA(1)(b). New subsection (3D) makes clear that where any of these events take place, they effectively cancel out any previous intimation or consent. There is no need for the previous intimation or consent to have been explicitly cancelled.
116.New subsection (3E) sets out requirements for the Scottish Ministers to give notice to parties where a change is requested in relation to the provision of information under section 16ZA. The Scottish Ministers will be required to notify the person entitled to receive information under section 16 if a supporter or nominee withdraws their consent to receiving information. They will also be required to confirm to the supporter or nominee, in that case, that information will no longer be given. In cases where the person entitled to receive information under section 16 withdraws an intimation or grant of consent, or makes a fresh intimation or grant of consent, to the effect that a previous supporter or nominee will no longer be entitled to receive information, the Scottish Ministers will be required to notify the previous supporter or nominee.
117.New subsection (3F) makes provision about cases where the person who is entitled to receive information under section 16 is a child, and a supporter or nominee has been receiving information. In such cases, the Scottish Ministers must contact the child before the child turns 18 to establish how the information is to be provided once the child turns 18. However, a new intimation will be required to be made under section 16(1), after the child has turned 18, in order to effect a change. Otherwise, the information will continue to be provided in the way it was being provided previously, including to any supporter or nominee.
118.Subparagraph (2)(g) substitutes the definition of “support services” in section 16ZA(5) with a new definition which replaces references to “the victim” with references to “P”.
119.Subparagraph (4) makes changes to section 16D of the 2003 Act which are equivalent to the changes made to section 16ZA. Section 16D is about the provision of information to a supporter where the offender was subject to a compulsion order and restriction order. As a result of the changes, victims of such offenders will be entitled to appoint a nominee, instead of a supporter, should they choose to do so.
120.Subparagraph (7) makes equivalent changes to section 17ZA of the 2003 Act. That section is about the provision of information and notifications to a supporter where an offender is to be released on licence. As a result, victims of such offenders will be entitled to appoint a nominee, instead of a supporter, should they choose to do so.
121.Subparagraph (9) modifies section 17A of the 2003 Act. That section requires that a person entitled to receive information under section 16 is given the right to make representations where an offender is being considered for temporary release. Subparagraph (9) adds reference to nominees to that section. Nominees (and supporters) are not given the right to make representations, however. The changes to section 17A reflect the fact that a nominee may have been receiving information under section 16ZA.
122.Section 17B of the 2003 Act makes provision about the right of a person entitled to receive information under section 16 or 16A to make representations before a hospital direction or transport for treatment direction is made in relation to the offender, or before one of certain decisions which might be taken in relation to an offender subject to a compulsion order and a restriction order is made. The relevant decisions are set out in section 17B(5). Paragraph 2(10) adds a new subsection (5A) to section 17B. The new subsection requires the Scottish Ministers to set a time limit for representations to be made.
123.Subparagraph (11) inserts a new section 17BA into the 2003 Act. The new section makes provision about cases where a person is entitled to make representations under section 17B. It provides that where a person is entitled to receive the information that a decision described in section 17B is to be made, that person might intimate that they wish for a supporter or nominee to receive that information as well as, or instead of, themselves. The supporter or nominee is not given the right to make representations, only to receive the information that the decision is to be made and the person has the right to make representations. The provision in relation to the appointment of supporters and nominees is equivalent to that made in section 16ZA, as amended by this Act.
124.Section 17D of the 2003 Act provides for a person who was given the right to make representations under section 17B to receive information about that decision once it has been made. Section 17DA provides for such a person to intimate that they wish for a supporter to receive that information as well as, or instead of, themselves. Subparagraph (12) amends section 17DA to allow for the person to make an alternative intimation that they wish for a nominee to receive the information as well as, or instead of, themselves, in the same way as is provided for in section 16ZA, as amended by this Act.
125.Subparagraphs (14) and (15) make changes to sections 17E and 18A of the 2003 Act to reflect the addition of the right to have a nominee throughout part 2.
Crown Application Part 3 – Victims’ Rights to Receive Information Section 39 and part 2 of Schedule 3 – notification of individual other than supporter to receive information