88.Section 16(5) of the 2003 Act makes provision about what happens where information would fall to be given to a person by virtue of section 16(1) but that person has died or is incapable, or is a child under the age of 12, to ensure that another relevant person can receive that information in their place. Subsection (6) makes related provision.
89.Section 36 introduces part 1 of schedule 3, which sets out modifications to the provisions in relation to the provision of information where the person to whom information would otherwise fall to be given has died or is incapable. By virtue of the modifications, section 16(5) of the 2003 Act provides that where information would fall to be given to a person by virtue of section 16(1), but that person has died or is incapable, a designated person can receive that information in their place. Section 16(5) no longer makes provision in relation to victims under the age of 12. That provision is made instead by the modifications made to the 2003 Act by section 38 of this Act.
90.Paragraph 1(2)(b) of part 1 of schedule 3 replaces section 16(5). The new section 16(5) provides that, where the original victim has died or incapable, section 16(1) will apply as if references in that subsection to “the victim” were references to “the designated person”. This means that any designated person will have the same rights under section 16(1) as the victim would otherwise have had. Section 16(6) is repealed by paragraph 1(2)(d).
91.Paragraph 1(2)(c) of part 1 of schedule 3 then inserts new subsections (5A) to (5K) into section 16 of the 2003 Act. The new subsections make detailed provision about the designation of persons to receive information where the victim has died or is incapable. Under new subsection (5B)(a), the Scottish Ministers may designate up to 4 persons to receive the information in cases where the victim has died and may designate one person where the victim is incapable. New subsection (5B)(b) obliges the Scottish Ministers to consider whether any person who has indicated that they wish to be designated ought to be designated – no formal application process for designation is set out in these provisions, but such a process may be established on an administrative basis. If the maximum number of persons has already been designated, however, then the Scottish Ministers are not required to consider designating the person.
92.New subsections (5C) and (5D) provide for the Scottish Ministers to remove or replace persons as designated persons, and, where the victim has died, to add additional designated persons. Under new subsection (5C)(b) the Scottish Ministers may designate a total of 5 persons where the victim has died – that means that the usual limit of 4 may be exceeded where the additional person wishing to be designated can demonstrate to the Scottish Ministers that there is justification for the limit to be exceeded and for them to be appointed.
93.New subsection (5E) requires the Scottish Ministers to have regard to the code of practice in relation to the designation of persons. The code of practice is to be issued under new section 18ZA of the 2003 Act, being inserted by paragraph (4) of part 1 of schedule 3.
94.New subsections (5F) to (5J) make provision about the designation of children to receive information in the case of death or incapacity of the victim. In such cases, the Scottish Ministers are to determine whether the information should be given to the child, to the child and the person who cares for them (such as their parent), only to the person who cares for them, or to another adult who has a relationship to the child. In making that determination, the Scottish Ministers are to consider the age and maturity of the child, any views expressed by the child, and the best interests of the child. The Scottish Ministers are also to have regard to the code of practice to be issued under new section 18ZA. A designation may be reviewed by the Scottish Ministers at any time, including at the request of the child or of any adult who, under the determination made by the Scottish Ministers, is to receive the information as well as or instead of the child. A new determination can be made as a result of such a review.
95.New subsection (5J) provides that where a child has been receiving information as a result of having been designated, the Scottish Ministers must contact the child before they turn 18 to establish how the information is to be provided once the child turns 18. However, a new intimation will be required under section 16(1), after the child has turned 18, in order to effect a change. Otherwise, they are to continue to receive information in accordance with the determination made when they were still a child (and so, for example, their parent might continue to receive information in addition).
96.New subsection (5K) provides a definition of “incapable” for the purposes of new subsection (5) of section 16 of the 2003 Act. The definition refers to the person being incapable of understanding or remembering the information, due to a mental disorder or inability to communicate. Where an inability to communicate can be overcome by the use of a communication aid, a person is not treated as incapable.
97.Paragraph (2)(e) of part 1 of schedule 3 replaces the previous section 16(9) of the 2003 Act, which made provision for the Scottish Ministers to modify elements of section 16 by order. The replacement subsection (9) changes the power to a regulation-making power, and updates which parts of the section can be modified, to reflect the changes being made to the section by this Act.
98.Section 16B of the 2003 Act provides information about persons entitled to be given information under section 16A of that Act. Section 16A is about the provision of information to a victim of an offence where a person has been made subject to a compulsion order and a restriction order as a result of having been convicted of that offence. Paragraph (3) of part 1 of schedule 3 amends section 16B to make equivalent provision in relation to the death or incapacity of a victim entitled to receive information under section 16A as for persons entitled to receive information under section 16, as modified by paragraph (2) of part 1 of schedule 3.
99.Paragraph (4) of part 1 of schedule 3 inserts a new section 18ZA into the 2003 Act. The new section requires the Scottish Ministers to prepare a code of practice, to which they are to have regard in designating persons to receive information, adding or removing designated persons, and in determining who is to receive information when a child is designated.
100.The Scottish Ministers must publish a draft of the code and consult with such persons as they consider appropriate in preparing the code. They are then to publish the code in the manner they consider appropriate and lay the code before the Scottish Parliament. The code may be revised and an updated code published at any time. New section 18ZA(4) sets out an illustrative list of matters which might be covered by the code. The list includes persons who may be designated, by reference to their relationship to the victim, guidance about various matters around the designation of persons, and the setting out of a complaints and reconsideration process.
Crown Application Part 3 – Victims’ Rights to Receive Information Section 36 and part 1 of schedule 3 – right of eligible persons to receive information in event of death or incapacity of victim