How victims and vulnerable witnesses can be better treated by the criminal justice system, and in particular through the trial process, has been a topic of recent debate and attention in the UK.
In December 2013 the Labour Party announced its intention to enact a Victims’ Law, which would put victims’ rights on a statutory footing and provide legal recourse when these standards are not met. Former Director of Public Prosecutions (2008 – 2013) Sir Keir Starmer QC was appointed as Chair of a Victims’ Taskforce to investigate and make suggestions as to what should be included in the proposed Victims’ Law.
The enactment of such a law is far from certain, Labour would be required to win the general election, and a Conservative Government in their stead would be unlikely to go as far as the introduction of a ‘Victims’ Law’ as there has been no indication of such thus far, with Labour describing the Code of Conduct introduced by the Coalition Government as “toothless”.
The debate and attention drawn to the issue however is most welcome, and new ways in which victims can be assisted, and improvements made to the justice system, should be listened to, and implemented where appropriate.
Since becoming Chair of the Victims’ Taskforce, Sir Keir Starmer QC has stated that the justice system “is not fit for purpose for victims” and that “the more vulnerable you are as a victim, the less able the criminal justice system is%2 to protect you.” He also claimed that due to a lack of faith in the system many victims of domestic and sexual violence “simply don’t come forward.”
Writing in the Guardian he said “Most victims have so little faith in our criminal justice system that they do not access it at all.” Claiming that victims’ rights up until now have only been considered as a part of sentencing, thus ignoring those who do not come forward for fear of how they are treated. This is of vital importance as the criminal justice system, as it stands, cannot operate to punish those who commit crime without the willingness of the victims to stand against them, by reporting the crime, and then giving evidence.
He also furnishes the public with his negative interpretation of the system as it presently operates:
“The problems are obvious. Many victims, particularly victims of personal or sexual violence, lack the confidence to come forward to report crime, lack adequate support if they do so, and face an unacceptable ordeal in the courtroom if their case gets that far. All involved in the delivery of criminal justice, including the police, prosecutors and judiciary, and all political parties agree that the situation needs to improve.”
With regard to the currently preferred approach of charters, codes and guidance, he remarks: “The conclusion that victims’ rights will only be taken seriously if they are enshrined in law is now inescapable.”
This may be true, although what those rights should be, or rather how far those rights should extend into matters of procedure, is a matter for further debate. One doubts if there would be any reasonable objections to victims being treated more courteously, being better informed of progress and procedure, and being provided with the support necessary to rebuild and so far as possible move forward with their lives. Whether victims’ rights should extend beyond this into procedural rights, through victim impact statements for example, I am yet to be convinced, although appreciate that such is not without some merit.
Sir Keir Starmer QC highlights some of the options which may be included within a Victims’ Law indicating that the Victims’ Taskforce will have wide terms of reference. To ensure that victims’ crimes are investigated, the mandatory reporting by people working with children of suspicions of sexual abuse, has been suggested, along with the legal right for victims to have decisions, made by the police or prosecutors not to continue with their cases, reviewed.
When it comes to reporting, challenging the norm, that those who are victims of sexual or personal violence have to attend a police station to report the crime, alternatively making clinics staffed by experts, as is the case in Manchester, available for the reporting of crimes whereby the victims can receive the support they need and can be provided assistance in accessing the criminal justice system.
On the court process he said:
“The idea that if the prosecution and defence attack each other as fiercely as possible the truth will somehow pop out has its attractions, but for particularly young and vulnerable witnesses there are obvious downsides. Without casting around the world for the elusive perfect criminal justice system, the taskforce will consider the extent to which it might be possible to blend the adversarial and inquisitorial systems. Perhaps judges should be given the task of questioning young and vulnerable witnesses?”
This would be one option; however the Ministry of Justice has begun a pilot scheme based at Leeds, Liverpool, and Kingston-Upon-Thames Crown courts. The pilot involves the pre-trial recording of evidence, including cross-examination, in front of a judge which is then played to the jury during the trial.
All child victims and all witnesses under 16 years of age, along with those with a mental or physical disorder, which is likely to result in their evidence being diminished, in pilot areas, will be eligible for the practice. If successful, vulnerable victims of the most serious crimes, such as rape and sexual assault may be included in any roll out of the scheme.
The clear benefits of such a scheme are that the victim or witness is not subjected to a public spectacle, by which the quality of their evidence may be diminished through stress, and the protections of cross-examination in front of a judge are maintained which preserve the defendant’s right to a fair trial.
In the coming year it will be interesting to compare the Victims’ Taskforce’s proposals with those put forward by the Coalition Government, and the outcome of the pilot scheme, detailed above. Both major political parties appear to be committed to improving the experience for victims, whether any significant progress can be made prior to the election, or if it is posturing to appear to be on the side of victims, actions will determine.