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The Role and Rights of Victims of Crime in Adversarial Criminal Justice Systems: Recommendations for Reform in England & Wales

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The Role and Rights of Victims of Crime in Adversarial Criminal Justice Systems: Recommendations for Reform in England & Wales The role and rights of victims of crime in adversarial criminal justice systems: Recommendations for reform in England & Wales Jane Gordon Alison Gordon December 2020 C 1 Foreword Victims can suffer badly from their treatment by the criminal justice system, worsening any harms the crime has caused. This is often through disregard by agencies like the police and CPS and it is easy to see why. Crimes are seen as an attack on the state and not against the victim. So proceedings are not there to put right the victim’s wrong but to enable the state to inflict punishment and affirm the rule of law. If a case is brought, the victim can be compelled to be a witness but not to talk about what they have personally suffered, merely, like a bystander, to tell the court what the defendant did. In the adversarial system, the defendant is at the centre of the court process. The prosecution prosecutes them; the defence defends, the jury determines guilt and the judge ensures that their trial is lawful. This centrality is not to be criticised and defendants’ rights need fully to be protected. However, all the agencies tend to lean in towards this focus and see victims as temporary and marginal – ‘witness fodder’ as one academic has described. Yet, victims may have suffered serious injury, sexual assault or the death of a loved one. They are intimately involved from the day of the offence through the criminal justice process and often beyond far into their future. The notion that the state prosecutes on behalf of all of the public does not capture that special involvement and by failing to do so it fails to assure the rights needed to support victims. The criminal justice system, which cannot function without victims, needs to adjust its perspective to see them as valued participants and to support them appropriately. The rights they need are not a challenge to the defence. They include help to understand the process, updates on their case, respectful treatment, procedural justice and support as and when it is needed. Some victims also want their voice to be considered at important stages in the proceedings. The exercise of such rights helps victims to recover from victimhood and restores their confidence in a society which has, after all, failed to protect them from crime in the first place. It is time for that change to occur. At present all pointers suggest a decline in confidence in the criminal justice system. The Crime Survey for England and Wales 2018-19,1 for instance, shows that while 73% of victims were happy with initial treatment by the police, over a half (52%) quickly grew dissatisfied with a lack of communication. Just 10% of victims had contact with support services, though police should refer them on in every case. For the sixth year in succession, just one in seven victims recalled being offered a Victim Personal Statement.2 These are all rights set out in the Victims’ Code but they are not being delivered. It is therefore not 1 Victims Commissioner for England and Wales: Victims statistics, year ending March 2019: police, and the criminal justice system; and, Victims statistics, year ending March 2019: victims services, restorative justice, and information, advice & support. At www.victimscommissioner.org.uk. 2 Analysis of the offer and take-up of Victim Personal Statements 2018-19 at www.victimscommissioner.org.uk. 2 perhaps surprising that this year, across all crime types, 24% of victims decided not to support a prosecution.3 I decided to commission research to see whether other adversarial criminal justice systems were better at ensuring victims’ rights without harming those of the defence. I wanted to understand whether a change in perception, perhaps from bystander witness to participant victim might be helpful. Sisters For Change took up the challenge and have produced this strong and comprehensive report, which takes a wide-ranging look at international institutions and, principally, Commonwealth adversarial systems. It draws out the roots in jurisprudence of triangulating the interests of victims with those of the defence and the public in an adversarial system. In particular, the report writers focus on new legislation in Victoria, Australia which has harnessed that jurisprudence to bring about real change. Some victims will want a voice in proceedings as well as good treatment. We are already used to that idea in the UK, where there is the – albeit little implemented – right to a Victim Personal Statement about the impact of the crime when the defendant is being sentenced. There are also victims’ rights to review decisions by the police and the Crown Prosecution Service to discontinue prosecutions. In our recent survey of rape survivors we found that those decisions could be personally devastating to victims and recently the High Court has decided that all victims should be entitled not only to ask the CPS to review such a decision but to be allowed to present arguments in favour of a change of mind. I believe making victims statutory participants in the criminal justice process can redefine their role and ensure they are viewed by everyone as active participants in proceedings that concern them intimately. This status does not make them a party to the proceedings, nor a decision-maker in them, but it does confirm victims as active contributors to the criminal justice process. My thinking on this issue continues to evolve and I thank Sisters For Change for the immensely stimulating work, which will influence the design of outcomes for victims for many years ahead. Dame Vera Baird QC Victims’ Commissioner – England and Wales 3 Home Office Crime Outcomes in England and Wales, 2019-2020, see: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/901028/crime- outcomes-1920-hosb1720.pdf 3 Acknowledgements The Victims’ Commissioner would like to thank the researchers and authors of this report, Jane Gordon, Sisters For Change Legal Director, and Alison Gordon, Sisters For Change Executive Director, and would also like to thank Sarah Livesey who completed some initial research at the early stages of the research project. Jane Gordon MA (Oxon) LLM is a human rights lawyer with over 20 years’ experience working in practice and policy at the domestic, regional and international levels. In 2014, Jane co-founded Sisters For Change and is currently SFC Legal Director. Before SFC, Jane was a human rights legal consultant. Jane was Human Rights Advisor to the Northern Ireland Policing Board (2003-2008) where she co-devised the first ever framework for monitoring the human rights compliance of the police. In 2009-10, she was appointed Human Rights Advisor to HMIC’s national policing protest review. Jane has advised public authorities and parliamentary select committees in the UK, advised national human rights institutions in Ireland, Jamaica, and Malawi and litigated cases against Russia, Turkey, Georgia, Armenia and Ukraine before the European Court of Human Rights. Between 2008- 2017, Jane was Senior Fellow at LSE’s Centre for the Study of Human Rights and Centre for Women, Peace and Security. In 2013/2014, Jane served as gender advisor/ SGBV investigator to the UN Commission of Inquiry on Syria. Alison Gordon MA (Oxon) MA MBA OBE is an expert in public policy and international relations. In 2014, Alison co-founded Sisters For Change and is currently SFC Executive Director. Before SFC, Alison completed an MBA at the Hong Kong University of Science & Technology and Columbia University where she was awarded the HKUST Outstanding Leadership Award in 2013. Alison served for 10 years in the British Foreign & Commonwealth Office (2002-2012), working in senior policy positions in the Middle East, South America and South Asia. Alison was awarded an OBE for her work in Iraq in 2006-07. Before the FCO, Alison worked in a range of operational roles in the media and technology sectors, including strategy at the Guardian and BBC and Content Development Director at Liberty Media’s global broadband business. Sisters For Change (SFC) was founded in 2013 to combat discrimination and violence against women and girls worldwide. Sisters For Change has worked with NGOs, women’s rights organisations, women’s unions and human rights defenders across India, Indonesia and the UK and with a number of governments across the Commonwealth to deliver legal reform, empowerment, accountability and advocacy programmes to end discrimination and violence against women and girls. For more information visit 4 Table of Contents Executive Summary ................................................................................................. 7 Introduction and context ....................................................................................... 10 Context of this review: a criminal justice system in crisis ...................................... 11 The impact of the COVID-19 pandemic ................................................................ 12 The changing role of the victim in the criminal justice system ............................... 13 1 – Definitions and Key Concepts......................................................................... 14 Summary............................................................................................................... 14 Introduction ........................................................................................................... 14 The adversarial criminal trial ................................................................................
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