The Terminology Debate They Didn't Publish
Internal Scottish Government material released under Freedom of Information law reveals that officials, senior legal stakeholders, and parliamentary representatives explicitly debated whether the use of the word "victim" before conviction risked undermining the presumption of innocence. The concerns were formally recorded at a judicial governance meeting, developed through internal correspondence, raised by the Law Society of Scotland in published amendment proposals, and translated into a series of parliamentary amendments at Stage 2 of the Victims, Witnesses and Justice Reform (Scotland) Bill. The Government considered those concerns, engaged with them directly, and retained the terminology as a deliberate matter of policy.
On 3 May 2023, a meeting of the Lady Dorrian Governance Group took place. The group is a formal judicial governance body associated with the reform programme taking shape around what would become the Victims, Witnesses and Justice Reform (Scotland) Bill. Representatives of the defence bar used the meeting to raise a concern about how the Bill used the word "victim".
Their position was precise. The recognised legal term in Scots criminal procedure for a person against whom it has been alleged that a crime was committed is "complainer". The defence sector's argument was that using "victim" in relation to court proceedings before a verdict had been returned, or a guilty plea entered, presupposed that a crime had taken place. They contended this interfered with the presumption of innocence and the right to a fair trial.
The concern was not about everyday language. "Victim" is widely and appropriately used in ordinary speech, in support services, and in public communication, where its meaning causes no procedural difficulty. The objection was narrower than that: that embedding the term within formal legislation governing proceedings which may not have resulted in any finding of guilt imports a presumption into the institutional framework itself, in a way that colloquial usage does not. Statute is not conversation. When Parliament or the executive deploys terminology in the machinery of a justice system, the argument runs, the question of whether that language prejudges what proceedings are meant to determine becomes a structural concern rather than a semantic one.
The meeting note records the exchange in formal terms:
"The defence sector felt that the use of the term 'victim' in relation to court proceedings which occurred prior to a verdict being returned or a guilty plea being tendered had the effect of presupposing that a crime had taken place and therefore interfered with the presumption that an accused is innocent until proven guilty and their right to a fair trial."
The Chair of that meeting, in response, referred to the Policy Memorandum and explained that the use of "victim" was intended to recognise that not all victims of crime have a case which comes to trial. The Scottish Government indicated it would consider whether alternative terminology was more appropriate in specific instances within the Bill.
That exchange on 3 May 2023 was the beginning of a documented internal process. Two days later, a formal written submission arrived from the same representative, expanding on the concern in detail.
The 5 May 2023 email, addressed to a senior official within the Criminal Justice Division, set out specific sections of the Bill where the terminology was said to be inconsistent or constitutionally problematic. The author noted the existence within the same Bill of provisions which correctly used "complainer", pointing to Section 64 dealing with independent legal representation. They argued that if drafters had understood the procedural significance of "complainer" in some sections, the failure to apply it elsewhere required explanation.
The submission concluded with language that was direct:
"The use of 'victim' presupposes guilt. I appreciate that this section refers to an Act already passed but surely now is the time, when changes are being made, to correct this terminology by including reference to 'complainer'."
And more extensively:
"I can't overestimate how the misuse of 'victim' presupposes the clear perception of guilt and that the right to a fair trial no longer exists."
That email was forwarded internally by a senior official within the Criminal Law, Practice and Licensing Unit on 11 May 2023, asking policy leads to review the specific provisions identified.
The response from Scottish Government officials on 11 May 2023 set out the policy reasoning in some detail. The core argument was that "complainer" is a term specifically tied to criminal proceedings from the point of report to police onwards, and was therefore unsuitable for the anonymity provisions contained in Section 63 of the Bill, which are designed to take effect from the moment a relevant offence is committed.
Officials explained that the anonymity protections do not require any positive action by the individual to engage the right. They cover people who do not report to police, those who pursue civil rather than criminal remedies, and those who make no formal disclosure at all. In that context, "complainer" was said to be technically wrong as well as potentially confusing for members of the public who might be subject to the offence of breaching anonymity. Reference was also made to the Sexual Offences (Amendment) Act 1992, where UK legislation adopts "victim" for anonymity provisions.
A formal response was issued by the Criminal Justice Division on 28 June 2023. It summarised the policy position in careful terms, addressing each of the concerns raised. On the anonymity provisions specifically, it concluded that using "victim" was not merely convenient but was, in the context of protections triggered by the offence itself rather than by the commencement of proceedings, the only terminology which accurately described the scope of the right being conferred.
The disclosed material does not suggest the Government treated the constitutional objection lightly. The question was passed to policy leads, formally responded to in writing, and considered in the context of the Bill as a whole. Officials also noted that "victim" had been used in the same broad sense without apparent difficulty in the Victims and Witnesses (Scotland) Act 2014, which was enacted to give effect to EU Directive 2012/29/EU establishing minimum standards on the rights, support, and protection of victims of crime.
But the question did not settle there. It returned to the parliamentary process at Stage 2.
In December 2024, the Law Society of Scotland published proposed amendments to the Bill. Their position was formally stated: whilst supportive of establishing a Victims and Witnesses Commissioner, the Society was concerned about the conflation of the legal terms "victim" and "complainer". Their view was that "categorising a complainer as 'victim' prior to any conviction runs the risk of dismissing the presumption of innocence and conveys the message that an allegation equates to guilt."
Those proposed amendments were taken up by Liam Kerr MSP at Stage 2. He tabled a group of amendments, including Amendments 94 to 103, 107 to 109, 111 to 117, and 134, which sought to add the term "complainer" to the title of the Victims and Witnesses Commissioner, thus rendering it the Victims, Complainers and Witnesses Commissioner. Amendment 118 sought to insert a discrete definition of "complainer" into the interpretation section. Amendment 120 sought to remove from the existing definition of "victim" the wording covering offences only suspected to have been committed, which would have had the practical effect of limiting "victim" to persons where investigations had resulted in a conviction.
The Scottish Government's internal Stage 2 briefing, which forms part of the disclosed material, advised Ministers against supporting any of these amendments. On the proposed addition of "complainer" to the Commissioner's title, officials argued that the remit of the Commissioner would not change because the existing definition of "victim" in section 23 already incorporated complainers within its scope. On the proposed removal of "suspected" offences from the definition, officials noted this could significantly narrow the protections, leaving out cases where an offence had been suspected but proceedings had not concluded.
The briefing also recorded that Victim Support Scotland had been consulted. VSS described "complainer" as contested and noted it had no application outside the court environment. They expressed concern that many victims would experience the term as trivialising, as if their experience were being characterised as a mere complaint rather than a serious harm. VSS also pointed to data from the Scottish Crime and Justice Survey, published in November 2023 for the years 2021/22, which reported that only 29% of all property and violent crime came to the attention of the police. That figure had fallen from 38% in 2008/09. VSS's position was that the majority of people harmed by criminal conduct never enter any formal process, and "complainer" would not apply to them.
The speaking note prepared for the Minister's response to Liam Kerr's amendments is among the most direct passages in the disclosed material. Having set out the policy reasoning, it addresses the constitutional objection explicitly:
"I disagree with any sentiment that suggests that a victim is not a victim unless a person has been tried in a court of law. I also refute any suggestion that using the term victim is prejudicial in terms of assuming guilt, the term attaches to the individual who has been harmed rather than inferring anything about who has caused the harm."
The same note confirms what the earlier email correspondence had indicated: the use of both "victim" and "complainer" within different parts of the Bill was not the product of inconsistent drafting.
"These words are used deliberately and intentionally, befitting the legal status of the individual being referred to."
The speaking note also acknowledged the term "complainer" is used in the Bill where legally required, including at Section 64 dealing with independent legal representation. The Government's position was therefore not that "complainer" has no place in the legislation, but that the two terms serve distinct purposes reflecting the different stages of proceedings and the different persons intended to be covered by each provision.
Kerr's amendments on terminology were not supported at the Stage 2 committee session on 12 March 2025. The Bill continued through its remaining parliamentary stages and was passed by the Scottish Parliament in September 2025, receiving Royal Assent as the Victims, Witnesses, and Justice Reform (Scotland) Act 2025. The Commissioner's title remained the Victims and Witnesses Commissioner. At Stage 3, the Scottish Government brought forward its own amendments to the definition of "victim" following discussions with victim support organisations. Those amendments expanded the definition rather than narrowed it. The constitutional concern about pre-conviction terminology, formally documented across two years of internal discussion and parliamentary debate, did not alter the legislative outcome.
The FOI response which disclosed all of this material was issued on 14 May 2026 by Lucy Lawson of the Criminal Law, Practice and Licensing Unit within the Scottish Government's Directorate for Justice. The original request, submitted on 23 April 2026, asked for any internal briefing, drafting note, submission, legal advice, policy note, internal correspondence, or recorded discussion explaining why the terms "victim", "survivor", and "complainer" were used in the Bill's factsheet and policy memorandum, covering the period between 1 January 2023 and 31 December 2025.
Not all of the requested material was released. Three FOISA exemptions were applied.
Section 30(b)(ii), covering the free and frank exchange of views, was applied to withhold material on the basis that disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views between officials. The Government's stated reasoning was that officials require a private space to discuss issues and options before reaching a settled view, and that disclosure of such exchanges would undermine the quality of the policy-making process.
Section 36(1) was applied to withhold material subject to legal professional privilege, on the basis that the public interest in maintaining confidentiality of legal advice communications outweighed the public interest in transparency.
Section 38(1)(b) was applied to redact personal information. That exemption is not subject to a public interest test.
The effect is that the material disclosed represents a partial picture. What the documents reveal is itself significant. What they do not reveal, and the reasons given for withholding it, form part of the documented record in their own right.
The constitutional question at the centre of this disclosure is not new in Scots law, and it is not confined to this legislation. The tension between language that reflects the experience of those who have been harmed and language that preserves procedural neutrality before guilt is established is a recurring difficulty in how justice systems communicate publicly.
What the disclosed material adds to that broader debate is specificity. It shows that the tension was not overlooked during the preparation of this Bill. It was formally raised at a senior judicial governance meeting, developed through written correspondence at official level, addressed in a formal response from the Criminal Justice Division, revisited by the Law Society of Scotland, translated into parliamentary amendments at Stage 2, and resolved through a direct Ministerial position.
The documents do not establish that the Scottish Government acted without lawful authority. The use of "victim" in legislative and policy contexts has a statutory history in Scotland going back at least to the 2014 Act, and reflects EU-derived minimum standards. The policy arguments for its use are stated clearly in the disclosed material and are not without substance. Nor does the terminology in legislation or policy documents alter what happens inside a courtroom: Scottish courts continue to direct juries on the presumption of innocence, and "complainer" remains the term used in criminal procedure where proceedings require it, including within the Act itself.
What the disclosure does establish, more precisely than any public statement had previously done, is that the presumption of innocence was explicitly raised as a concern during internal preparation of this legislation, at an institutional level and by legally qualified stakeholders, and that it was considered and consciously set aside as a matter of deliberate policy.
The FOI reference for this disclosure is 202600515424. The full annex of disclosed material is available here.
Written by the Accused.scot Editorial
19.05.2026
Editorial note: Accused.scot is an independent commentary site focused on justice process, evidence, and fair-trial principles in Scotland.
Our work critiques systems, policy, and public discourse, not private individuals. We welcome reasoned challenge to our arguments.