Watch: Victims’ Commissioner in conversation with… Jane Gordon, Sisters for Change

So, hello. I’m Vera Baird. I’m the Victims Commissioner for England and Wales and today I’m delighted to be joined by Jane Gordon from sisters for change. Jane Gordon and Alison Gordon are the co-authors of a research report that my office commissioned from Sisters for Change, which we published on my website. The report is called: The role and rights of victims of crime in adversarial justice systems recommendations for reform. Jane, thank you very much for joining me today. Introduce yourself. 

Thank you, Vera. I’m Jane Gordon. I’m the legal director of Sisters for Change. Sisters for Change is an international NGO that works to combat discrimination and violence against women and girls, and over the last three or four years we’ve been focusing specifically on reforming laws and strengthening laws to better protect women and girls from violence, and also to enhance gender equality across the board.

So Jane, you took up the challenge and you’ve produced this strong report that takes a sweeping look around international institutions and principally commonwealth adversarial systems, ultimately focusing down quite a bit on new legislation in Victoria, Australia. So I have some questions now. How would you sum up the big idea in your report that you’d like people to come away with?

What we do in the report is to set out to examine what the role and rights of victims of crime should be in the criminal justice system in England and Wales in 2020. This is on the back of the government’s current view of the victims code and its commitment to bring forward a victim’s law. What we know having looked at the background, and looking at other jurisdictions, is that in the past a victim has had a very limited or minimal role in the criminal trial process, often no role at all unless they appeared as a witness for the prosecution. But over time the exclusion of victims, and their lack of opportunity to participate effectively in criminal justice processes that have affected their rights, has been increasingly challenged both at international and domestic level. So over the last four decades in particular, the importance of safeguarding the rights of victims of crime has been progressively realized. And there’s now growing international consensus that victims of crime do, indeed, have an inherent interest in the manner in which criminal justice is administered. And that their rights as participants within the criminal trial process should be recognized. And that really takes me to the core argument and the central recommendation of our report, which is that victims of crime should be recognized in law as participants in the criminal trial process.

Through our review of the development of rights of victims in international law, and also in these other jurisdictions with criminal justice systems, we provide strong evidence to justify what really I would call a shift in our view of the criminal justice system, from what is currently a rather narrow binary focus on the rights of the accused and the prosecution acting in the public interest, to a focus on a triangulation of interests. To the rights of the accused, yes. To the independence of the prosecution, yes. But also taking into account the interest of the victim. 

What becomes very clear in the analysis is that England and Wales is mostly focused on service level rights, some procedural level rights, for instance the right to make a victim impact statement, but really victims don’t have significant rights to impact decision-making processes within the criminal trial process in England and Wales. So, for example, there is a right to review of police and Crown Prosecution Service decisions, but at the moment it’s a fairly weak right, not really the right to make sure that those submissions that are made by the victim are actually taken into account in decision making. So that’s one very substantive difference. And then when we look at other jurisdictions, when we talk about participation, we see a much more expanded sense of those types of rights. So, for example, in the province of Manitoba in Canada, in the state of Victoria in Australia, and in the state of California in the US, there’s much more progressive legislation on victims rights providing enforceable legal rights for victims of crime. And that would include, for example, the right to be heard in proceedings, in some jurisdictions the right to legal representation, and where there may be issues around disclosure of personal information, and also the right to have submissions that are made to criminal justice authorities taken into consideration, and to be given reasons for decisions that are made by those criminal justice authorities. So I guess the key takeaway is that England and Wales lags really fairly far behind in relation to the highest level of rights of victims, which are those substantive and legally enforceable rights of participation. 

The core finding that the commission made, and you can see we’ve been very heavily influenced by it, is that the role of the victim should be characterized as a participant in the criminal trial process, but again not a party to those proceedings. They said that victims should be given substantive rights, including the right to consultation with the prosecution and prosecutorial decisions, and the right to appear in any application to subpoena access or use a victim’s confidential communications or records. They also recommended the victims of violent crimes should be provided with legal aid to access legal advice and assistance in relation to those substantive legal entitlements, particularly those in relation to requests for disclosure of confidential communications. And I think that’s very significant. And legally acknowledging the victim as a participant. And that requirement has a significant impact, because it requires now, by law, all criminal justice agencies to respect the rights and entitlements of victims as participants. And it gives them, therefore, much stronger footing in demanding that they are taken into consideration in a real sense, rather than merely as a peripheral kind of add-on or adjunct to the crime and the criminal investigation and prosecution process. 

But in the end, in our recommendations we make two very specific recommendations that have I suppose special relevance to vulnerable victims and particularly victims of rape and serious sexual offenses. The first, I’ve already mentioned, is the right to free and independent legal advice and representation. And that’s in relation to specific requests for access to and disclosure of private or confidential information, communications or records. That could include mobile phone communications, text messages, it could include health records, it could include other confidential information that is often sought in those types of cases. And then we go one step further by suggesting that where a decision is made to disclose a victim’s private or confidential information or records, that the victim should not only be informed of the material that will be disclosed, but should also be given the reasons for the disclosure. I think this is a particular area where victims feel completely lost and confused about how the system operates, and often is a cause of the secondary trauma I’ve talked about.So, the idea of providing reasons and also backing that up with making sure that the victim’s views are taking into account, provides a level of protection I think for vulnerable victims for victims of sexual offences that is lacking at the minute and that we really do need to address, and i think there’ll be a lot of agreement around those recommendations as we go forward.

So thanks very much, Jane. As the new Victims Law develops, we obviously need to look at victims differently. They’re intimately concerned with the crime and with the proceedings that

follow and often for a life thereafter. We need to see that both their life and their rights have been damaged by a crime which, after all the state didn’t protect them from, they can’t be an afterthought. We need to see them as participants right at the center of the criminal justice process and support them properly. This report has really developed my thinking and I think it will develop other people’s thinking about what should be included in any victims law so thank you very much both for the immensely stimulating work you did in the report and for taking the time to talk with me today.

Thank you. We’ve really enjoyed doing the massive amount of research it did entail but I fundamentally believe it’s a really important moment and for England and Wales and hopefully with a substantiated victims code followed by a victim’s law we will actually begin to build confidence in the criminal justice system again, which which has been dented over the last few years and I think this would be one step in the right direction.