Centre for Public Policy

University of Glasgow researchers have published a new report for the Scottish Government, which identifies how an independent legal representation service for complainers in sexual offence cases in Scotland could be implemented. The service was a commitment made in the Victims, Witnesses, and Justice Reform (Scotland) Bill, which is presently at Stage 3 in the Scottish Parliament.

Blog by James Chalmers, Fiona Leverick, Eamon Keane, Jacqueline Kinghan

The issue of how best to support complainers in sexual offence cases is high on the agenda of policymakers worldwide. One option is providing independent legal representation (ILR) for complainers where the defence or the prosecution apply to lead evidence of matters such as their sexual history or counselling records. While ILR represents a challenge to the traditional model of criminal procedure, complainers have a legitimate interest here – their privacy – distinct from the interests of the prosecution and defence.

The Victims, Witnesses, and Justice Reform (Scotland) Bill, currently at Stage 3 in the Scottish Parliament, provides for a system of ILR for complainers in sexual offence cases where an application is made to admit evidence of their character or sexual history. Such evidence is normally inadmissible, but can be led at trial where certain conditions are satisfied. The prosecution already has a duty to seek and inform the court of the views of the complainer on such applications, but ILR would offer the complainer their own representation when the application is considered. ILR is different from merely providing independent legal advice (ILA), for example on the operation of the legal process, going further by providing in-court representation.

The Bill did not outline how the service would be delivered. We were asked by the Scottish Government to undertake a review of potential models of delivery and our report was published on 13 August 2025. Our research involved two components: (a) a literature review of ILR schemes in comparable jurisdictions and (b) semi-structured interviews with 41 participants from those jurisdictions and within Scotland.

Which jurisdictions can we learn from?

We identified several comparable jurisdictions with state-funded ILR for pre-trial applications. Several Australian jurisdictions have this, but ILR is only available for applications to admit the complainer’s sensitive records. Only Ireland and Canada currently provide state-funded ILR for applications to admit sexual history evidence, although Northern Ireland and England and Wales are considering it. Northern Ireland provides state funded ILA for sexual offence complainants and in England and Wales there have been two pilot ILA schemes in the area of sexual offences.

What did we find?

Implementing ILR in an adversarial system is complex, requiring attention to details such as referral mechanisms, disclosure of evidence, appeals, and facilitating representation where applications are made after the trial has commenced. Our report covers all these issues, but here we focus on our findings in relation to the model best suited to Scotland.

The jurisdictions we examined operated several different models of ILR/ILA delivery. The key distinction was between salaried (the Australian jurisdictions, England and Wales, Northern Ireland) and private practice models (Canada). Ireland operated a hybrid model involving salaried solicitors and panels of barristers in private practice. In a salaried model, the lawyers providing ILR are employed within an organisation specifically to do so – e.g. a legal aid service, a third sector organisation or a mixture of both. In a private practice model, lawyers work from private practice on a case-by-case basis and claim payment from the relevant legal aid agency.

Two key factors need special consideration when designing an ILR service: conflicts of interest and the need for a trauma-informed service.

Conflicts of interest can arise whichever model is chosen, where the organisation providing ILR is also representing the accused in the same (or a related) case. Trauma-informed practice is vital to meet complainers’ needs and to minimise the risk of re-traumatisation; our report sets out the key components of such practice that emerged from our research.

The advantages of a salaried model include developing expertise in relation to service provision; easier integration of trauma-informed practice principles; a single point of contact for clients with potential access to other support services; greater ease of monitoring and evaluation; potential benchmarking of rates of pay; lawyers being able to rely on the technical and administrative support of the wider organisation and supporting one another, including during periods of leave, thus minimising the likelihood of burnout. Disadvantages might include low rates of pay; capacity issues; and conflicts of interest around cases, especially if services are situated within legal aid. A salaried model will usually require some degree of ad hoc private provision to deal with conflicts of interest, a need for specialist expertise, or unexpected capacity issues.

The key advantage of a private practice model was flexibility and with that a reduced risk of burnout and vicarious trauma. Reaching more remote geographic areas is also a potential advantage. Disadvantages include insufficient time to spend with traumatised clients to build trust; reduced potential for developing specialist expertise; difficulties in finding lawyers at short notice; conflicts of interest; and the challenge of monitoring the quality of casework.

Interviewees tended to observe more advantages and fewer disadvantages with salaried provision. In addition, the salaried model’s disadvantages were seen as more easily addressed compared to private practice’s. The most significant disadvantages of the private practice model relate to difficulties in developing specialist expertise and embedding trauma-informed approaches. These are not impossible to address, but private practice’s constraints make that harder. Some interviewees working with private practice models told us that if they could start again and design their system from scratch, they would choose a salaried model.

What happens next?

We concluded that a salaried model seems the most appropriate model for delivering ILR in Scotland. This leaves open questions about where the service might be located: this and other policy decisions relating to implementation are now for the Scottish Government to make. It is clear that once the service is operational, it has the potential to make a real difference to complainers . While ILR will operate only in relation to one aspect of the process, experience from other jurisdictions suggests that it can give complainers a sense of agency that they otherwise lack, even where the legal outcome is not the one that they desired. As one interviewee put it, ILR can make “[the complainer’s] experience of one particular part of one particular flawed system a bit more bearable”.

Read the report on the Scottish Government website:

Independent legal representation and the victims, witnesses, and justice reform (Scotland) bill: A review of potential models of delivery

Read more about the review on the University of Glasgow news page.

Authors 

Fiona Leverick is Professor of Criminal Law and Criminal Justice at the University of Glasgow

James Chalmers is Regius Professor of Law at the University of Glasgow

Eamon Keane is Lecturer in Evidence and Criminal Procedure and Principal Solicitor of the Emma Ritch Law Clinic at the University of Glasgow 

Jacqueline Kinghan is Professor of Law and Social Change at the University of Glasgow

^{Preview image by Scott Graham on Unsplash}

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First published: 28 August 2025