Introduction
This essay explores whether victims in Scottish criminal law have a right under the European Convention on Human Rights (ECHR) to participate in criminal proceedings. The ECHR, incorporated into UK law through the Human Rights Act 1998, establishes fundamental rights and freedoms, some of which relate to victims’ roles in criminal justice systems. Scotland, as a devolved jurisdiction, operates a unique criminal justice framework, distinct from other parts of the UK, which influences how victims’ rights are recognised and upheld. This analysis will examine relevant ECHR provisions, particularly those under Articles 2, 3, 6, and 8, and assess their application to victims’ participation rights in Scottish law. The essay argues that while the ECHR provides a basis for certain procedural rights for victims, direct participation in criminal proceedings is not explicitly guaranteed and remains limited under Scots law. The discussion will be structured into sections addressing the ECHR framework, the position of victims in Scottish criminal law, and the interplay between the two, before concluding with reflections on the implications of these findings.
The ECHR Framework and Victims’ Rights
The European Convention on Human Rights, drafted in 1950 and enforced by the European Court of Human Rights (ECtHR), serves as a cornerstone for protecting individual rights across member states, including the UK (Council of Europe, 1950). While the ECHR does not explicitly address victims of crime, several articles have been interpreted to confer rights or protections relevant to their position in criminal proceedings. Notably, Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment) impose positive obligations on states to investigate crimes effectively, particularly where serious harm or death has occurred. For instance, in the case of McCann v United Kingdom (1995), the ECtHR held that states must conduct thorough investigations into deaths caused by state agents, implying a victim’s family has a right to be informed of such processes (ECtHR, 1995).
Article 6, which guarantees the right to a fair trial, primarily applies to defendants but has been extended in certain contexts to include victims. The ECtHR ruling in Doorson v The Netherlands (1996) acknowledged that victims’ interests must be balanced against defendants’ rights, particularly in protecting their privacy or safety during proceedings (ECtHR, 1996). Additionally, Article 8 (right to respect for private and family life) may protect victims from undue intrusion or distress during legal processes. However, none of these provisions explicitly grant victims a right to actively participate in proceedings, such as presenting evidence or influencing sentencing. Instead, the focus remains on states’ obligations to ensure fair and effective justice systems, with victims’ roles being largely procedural or protective rather than participatory.
Victims’ Position in Scottish Criminal Law
Scottish criminal law operates under a distinct adversarial system, influenced by both common law and civil law traditions. Unlike many civil law jurisdictions where victims can act as auxiliary prosecutors or civil parties in criminal trials, Scotland adheres to a public prosecution model led by the Crown Office and Procurator Fiscal Service (COPFS). Victims are generally considered witnesses rather than parties to the proceedings, with limited formal rights to influence case outcomes. The Victim and Witnesses (Scotland) Act 2014 marked a significant step in enhancing victims’ procedural entitlements, such as the right to receive information about case progress and to make victim impact statements at sentencing (Scottish Government, 2014). However, these measures fall short of granting victims direct participation rights, such as the ability to challenge prosecutorial decisions or address the court independently.
Furthermore, the Scottish system prioritises the public interest over individual victims’ interests, as evidenced by the COPFS’s discretion in deciding whether to prosecute. Victims cannot compel prosecution or appeal decisions not to proceed, even in cases of serious harm. This approach arguably reflects a structural limitation on victims’ agency within the Scottish legal framework, raising questions about compliance with ECHR standards on victim involvement. Indeed, while Scots law provides mechanisms for victim support, it does not equate to a legally enforceable right to participate in the decision-making processes of criminal proceedings.
Interplay Between ECHR Rights and Scottish Law
The interplay between ECHR provisions and Scottish criminal law reveals a complex landscape where victims’ rights to participation are neither explicitly recognised nor entirely absent. Under ECHR jurisprudence, states have a margin of appreciation in how they implement Convention rights, meaning Scotland is not strictly obliged to grant victims participatory status akin to civil law models. However, cases such as Osman v United Kingdom (1998) highlight that the state must ensure effective remedies for victims, particularly where fundamental rights under Articles 2 or 3 are engaged (ECtHR, 1998). In Scotland, mechanisms like victim impact statements and the right to information under the 2014 Act could be seen as aligning with these obligations, albeit in a limited form.
Critically, the ECtHR has not ruled that victims must have a direct role in criminal proceedings, and no specific case law mandates Scotland to adopt such a position. Instead, the focus remains on ensuring victims’ voices are heard through secondary channels, such as impact statements or consultation with prosecutors. This raises a broader question about whether the current Scottish framework adequately balances victims’ needs with the principles of public prosecution. Arguably, while the ECHR does not confer a clear right to participation, it indirectly pressures states to enhance victims’ procedural involvement to avoid breaches of rights under Articles 6 or 8. For instance, failing to inform victims of key developments in a case could theoretically violate their right to respect for private life, though no definitive ruling has tested this in a Scottish context.
Challenges and Limitations
Several challenges persist in reconciling ECHR principles with Scottish practice. First, the adversarial nature of Scots law inherently limits victims’ roles, as the system prioritises the state’s duty to prosecute over individual interests. This stands in contrast to jurisdictions like France, where victims can initiate proceedings as a civil party. Second, resource constraints within the Scottish justice system may hinder the implementation of expanded victim participation mechanisms, even if they were deemed compatible with ECHR obligations. Finally, there is a conceptual tension between victim participation and the defendant’s right to a fair trial under Article 6. Allowing victims greater influence risks perceptions of bias, a concern acknowledged in ECtHR case law (see Doorson v The Netherlands, 1996).
Despite these limitations, Scotland has made strides in recent years to improve victims’ experiences, reflecting an awareness of ECHR expectations. Generally, the current framework prioritises procedural fairness over active participation, and it remains uncertain whether further reforms are required to meet Convention standards. This uncertainty highlights a gap in both legal clarity and academic consensus on the extent of victims’ ECHR rights in this context.
Conclusion
In conclusion, victims in Scottish criminal law do not have an explicit ECHR right to participate directly in criminal proceedings. While Articles 2, 3, 6, and 8 of the ECHR impose obligations on states to protect victims’ interests through effective investigations and procedural safeguards, these do not equate to a right to influence prosecution or sentencing decisions. The Scottish system, rooted in a public prosecution model, offers limited avenues for victim involvement, primarily through information rights and impact statements as established by the Victim and Witnesses (Scotland) Act 2014. Although these measures align with certain ECHR principles, they fall short of granting victims a formal participatory role. The broader implication is that Scotland operates within the margin of appreciation afforded by the ECtHR, but continued scrutiny is necessary to ensure that victims’ procedural needs are adequately met without compromising the fairness of the adversarial system. Future reforms might consider whether enhanced participation mechanisms could further align Scottish law with evolving interpretations of ECHR rights, though such changes must carefully balance competing interests within the criminal justice framework.
References
- Council of Europe (1950) European Convention for the Protection of Human Rights and Fundamental Freedoms. Council of Europe.
- ECtHR (1995) McCann and Others v United Kingdom, Application no. 18984/91. European Court of Human Rights.
- ECtHR (1996) Doorson v The Netherlands, Application no. 20524/92. European Court of Human Rights.
- ECtHR (1998) Osman v United Kingdom, Application no. 23452/94. European Court of Human Rights.
- Scottish Government (2014) Victim and Witnesses (Scotland) Act 2014. Scottish Parliament.
