Victims’ rights – substantive change or political posturing?

30 September 2014

The Ministry of Justice this week announced plans to introduce a package of reforms designed to improve the experience of vulnerable victims and witnesses in the criminal justice system. The reforms have no doubt been prompted by recent high profile cases which have highlighted the challenges victims face giving evidence, particularly in cases involving sexual offences.

The death of Frances Andrade, who took a fatal overdose after giving evidence at the sexual assault trial of her former music teacher, was one such example.  However, given the complexity of the issues involved, will the proposed reforms be fit for purpose?

The key proposals to improve the experience of victims and witnesses include:

  • Establishing a new nationwide Victims’ Information Service by March 2015,
  • Measures designed to make the experience of giving evidence better such as:
    • Provisions for child witnesses to have their cross examination take place at a venue away from court and before the trial and for a recording to be played at court;
    • The requirement for advocates instructed in publically funded cases involving allegations of serious sexual assault to have undertaken specialist training;
    • The modernisation of court buildings to improve facilities for victims and witnesses.
  • Introducing a Victims’ Law to guarantee key entitlements for victims, such as the legal right to make a Victim Personal Statement (VPS)
  • Developing plans for paying compensation to victims up front

Some of the measures, such as the Victims Information Service and the modernisation of court facilities are likely to be fairly uncontroversial. The use of Victim Impact Statements in certain cases is already in practice and although the proposals will make VPS a legal right for victims, the principle is fairly well established. There are some proposals however which require more careful consideration.

It does not necessarily follow that pre-recording cross examination before trial will necessarily improve the experience of child witnesses, and it is easy to imagine situations in which it could have the opposite effect. The reality of most criminal prosecutions is that evidence and disclosure is still being served on the first day of trial and beyond.  In those circumstances there must be a mechanism for a witness to be cross examined on the new material. This could mean that a child witness would potentially have to undergo further cross examination during the trial, defeating the purpose of the pre-recorded cross examination. Pilot schemes are currently taking place and it will be important to carefully assess their outcomes before a national roll-out is implemented.

Further clarity is also needed in relation to the training requirement for publicly funded advocates instructed in cases involving serious sexual offences.  It is not clear what the training would involve.  In any event, the vast majority of advocates instructed in cases of this sort are highly skilled and experienced practitioners and it is hard to see how further training would have a significant impact on the experience of victims and witnesses. The fundamental tension in cases of this sort is that whilst vulnerable victims and witnesses must be handled sensitively, an advocate must be permitted to challenge the victim’s account and where necessary, test their credibility. Bizarrely, this training requirement would not apply to any defendant who instructed an advocate on a private basis rather than through legal aid. There appears to be no rationale for this distinction.

The neutral term ‘complainant’ is usually preferred by defence practitioners over the term ‘victim’, with victimhood usually being determined by a verdict in the case. The government’s use of the term ‘victim’ is a deliberate one, designed to show that its support and sympathy lies with the complainant rather than the defendant in criminal proceedings. This is underlined by the proposal to pay compensation to victims of crime “up front”.

Whilst some may support this as a measure to encourage victims to report crime and support the prosecution of defendants, it is difficult to understand how this could work in practice and how it would be funded. Would an unconvicted defendant be expected to pay a sum of money to an alleged victim before any court or tribunal has assessed the strength of the evidence or the extent of the harm caused?  How would the sums be determined? What would then happen in the event of an acquittal?

It would seem that these proposals have not been clearly thought through. Although there is a clear intention to highlight the government’s commitment to supporting victims of crime, it is not clear on careful consideration that the measures proposed will be practical, or deliver the desired impact. 

Some of the greatest difficulties victims and witnesses face can be attributed to the inherent inefficiencies in the criminal justice system. Greater government investment in the court service and ironically, in legal aid, would have as much of an impact in improving victims’ experiences by reducing delay and ensuring that highly skilled practitioners continue to practice.

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