Good Divorce Week 2020 and the Family Solutions Group Report: Key themes for a ‘good’ divorce or separation
We have blogged about the Bill previously (Sir Keir Starmer’s Victims of Crime Bill introduced to Parliament). In that post, which was written before the Bill was published, we expressed some scepticism about the need for Sir Keir’s Bill. We based our views on the Bill’s long title, which had at that time been published, and Sir Keir’s comments in the public domain about the Bill. In essence, we argued that his Bill might be unnecessary because of changes to the criminal justice system over recent years whereby the procedures of the traditional adversarial system had been adapted to meet the needs of victims. We also questioned whether the Bill might further infringe the already diminished rights of defendants. Finally, we argued that the Bill would not solve the funding problems affecting the ability of the courts’ service to provide the necessary support for victims.
Now that the Bill has been published, we continue to have concerns. We explore these in further detail below.
The Bill defines a” victim” as follows:
(1) A victim is—
(a) a person who has suffered harm which was directly caused by a criminal offence, or
(b) a close relative of— (i) a person whose death was directly caused by a criminal offence, or (ii) an incapacitated victim.
(2) It is immaterial for the purposes of subsection (1) that—
(a) no complaint has been made about the offence;
(b) no person has been charged with or convicted of the offence
(5) In this section— “harm” includes—
(a) physical, mental or emotional harm, and
(b) economic loss;
“criminal offence” means an offence committed, or subject to criminal proceedings, in England and Wales; and
“lacks capacity” means lacks capacity within the meaning of the Mental Capacity Act 2005.
This clause would extend markedly the role of a “victim” in the criminal justice process. As stipulated in the Bill, no complaint need be made or determination of guilt found in order for a “victim” to exist. Most obviously, the question arises as to how a criminal offence can have occurred without the matter having been proved in court? Moreover, who will determine who meets the criteria of being a victim? Will it be self-regulating (i.e. for individuals to decide) or will it be regulated by the courts? These questions are unanswered in the Bill. The effect of this clause is important when one considers further the rights afforded to victims (see below) should this Bill become law.
The Bill states as follows:
(2) A victim of crime shall be entitled to receive—
(a) accurate and timely information from all the agencies of the criminal justice system concerned with the detection and prosecution of the
relevant crime and with the support of victims of crime;
(b) adequate notice of all relevant court and other legal proceedings, including information about decisions by and discussions between agencies of the criminal justice system relating to the person convicted of the crime concerned (“the perpetrator”), including—
(i) information about any prison sentence previously served by the perpetrator,
(ii) information about relevant changes to the perpetrator’s circumstances whilst on parole or in custody, and
(iii) information about any crimes committed by the perpetrator outside the UK where the victim of the crime concerned is a British national;
(iv) access, where required, to adequate interpretation and translation services; and
(v) information about the direct contact details of the criminal justice agencies and individuals involved in the court or other legal proceedings concerned.
(8) Victims of crime shall have access to transcripts of any relevant legal proceedings at no cost to themselves.
(9) Victims of crime shall have the right to attend and make representations to a pre-court hearing to determine the nature of the court proceedings .
This clause would put on a statutory basis certain victims’ entitlements. Some sub-provisions are seemingly uncontroversial (though, one wonders how these rights would be enforced. Would a victim have to resort to judicial review?). There are, however, a number of potential problems with some of the sub-clauses within this clause. Proposed sub-clause 9 is, for example, problematic for some of the following reasons:
For instance, it is not explicitly defined in the Bill what is meant by “pre-court hearing”. One assumes that such hearings might extend to plea and trial preparation hearings and/or ground rules hearings. The latter types of hearings are however considered elsewhere in the Bill (see Clause 9). The Bill therefore needs further clarity in this area.
Moreover, at a pre-court hearing (i.e. before the trial proper) there is no guilty party. Rather, there is a defendant. Why should a “victim” (i.e. not just a complainant) be able to influence the manner of the defendant’s trial? Given (as drafted in the Bill) the self-selecting nature of victim status, this would appear to extend to an unacceptable degree third-party involvement in the criminal trial process.
(1) The Secretary of State shall ensure that judges, barristers and solicitors involved in criminal cases involving sexual and domestic violence undertake specialist training.
This seemingly innocuous provision is again rather concerning. What would the training consist of and what would be the purpose of such training? Who would pay for it? More fundamentally, how would the training impinge on the defendant’s lawyer professional obligations? The duty of a defendant’s lawyer is to represent the best interests of their client; it is not to safeguard the rights of complainants (however important these may be).
Lord Macdonald, QC, the Director of Public Prosecutions from 2003 to 2008, has recently taken issue with the philosophy underpinning Sir Keir’s Bill. Speaking to the Today programme, Lord Macdonald said:
"… the worst miscarriages of justice I have seen in my career have resulted from blinkered investigations in which the police [have] believed a theory at the start of the case and then gone on to 'prove' that theory. This supposedly pro-victims' rights stance of saying we believe the victims at the outset is precisely what we don't want. We don't want the police deciding what the truth is before the investigation starts … Not everyone who tells the police that they have been a victim of crime is telling the truth, it leads to the police believing people who are telling lies”.
Lord Macdonald remarks should be taken seriously. Criminal law practitioners are not averse, per se, to the notion of victims’ rights. However, we need to be very careful about extending (on a self-selecting basis) the ability of persons (other than the complainant and/or other trial witnesses) to interfere in the criminal trial process before there has been any finding of guilt.
As explained above, the current inadequate support offered to “victims” stems from a lack of resources. Legislation is not needed – a change of government policy is.
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