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Submitted on 19 July 2022

• See the government’s consultation response.
• See the Home Office consultation document (now closed).

About the Victims’ Commissioner

The Victims’ Commissioner for England and Wales is dedicated to promoting the interests of victims and witnesses.

The role of Victims’ Commissioner is set down in the Domestic Violence, Crime and Victims Act 2004:

• promote the interests of victims and witnesses;
• take such steps as she considers appropriate with a view to encouraging good practice in the treatment of victims and witnesses;
• keep under review the operation of the code of practice issued under section 32

The Commissioner is appointed by Ministers but is independent of government.  She is committed to representing all victims and witnesses and has a particular focus on those who are most vulnerable. She seeks to be transparent in all her activities, placing her correspondence with ministers and criminal justice agencies onto her website (https://victimscommissioner.org.uk/).  She is committed to make sure the voice of the victim is heard in all policy and practice across the criminal justice system.

Preamble

I was delighted when government listened to me and others and included amendments to the digital extraction clauses in the Police Crime Sentencing and Courts Bill (now Act 2021) which improved on my original amendment drafts and will provide victims with greater protection against intrusion of their Article 8 rights when they report serious sexual violence.  This draft Code of Practice (dCoP) is intended to provide detailed guidance on the lawful use of these powers and to ensure the highest standards of professionalism and compliance with this legislation. It is certainly a good start but, in my opinion, it could be improved.  It requires detailed guidance for officers and in its current iteration only serves to reinforce the legislation without much practical detail. The aim of the legislation and the Code is to bring about a change in current practice so that in particular rape complainants are no longer subject to the gross invasion of privacy that they have had to suffer in recent years simply because they have made an allegation. The dCoP will not, as stands, achieve this aim but with additional information and by input from victims’ groups it has potential to make this change.

Of course, it is imperative that government then also addresses the situation with regard to so-called third-party material so that whilst victims’ private lives are better protected from intrusion by this legislation; they are still suffering vast intrusion via material in the hands of third parties.

I am pleased that the secretary of state has made this a public consultation rather than just consulting those he is bound to consult under the legislation. It is vital we get the Code right to ensure that victims are adequately protected.

I have addressed your specific questions below, but I have some overarching comments.

Whilst the dCoP does cover the basics of the legislation, there is little in the way of specific guidance here. It is vital that the Code of Practice makes really clear the expectations of government in the application of the legislation, examples and scenarios are often very helpful in doing this, there are none here.  There are also more specific issues around some of the dCoP for example whilst reference is made to the National Police Chiefs Council (NPCC) data processing notice (DPN) there is nothing in the dCoP which compels its use by all forces, the Code is the perfect vehicle to make clear to forces that they should be using the NPCC notice, indeed greater specificity in the written notice is also required.

There should be greater detail and better safeguards around what constitutes agreement and indeed how that is recorded, strict-necessity and proportionality which could include examples of other means of obtaining the data, there should for example be a reminder that screen shots have long been held to be admissible.

The section on vulnerability is potentially problematic (see below) and should be re-drafted in conjunction with experts in serious sexual violence and in the listed vulnerabilities.

I would also encourage some cross referencing/ navigation within the document so for example in the section about obtaining consent in Part 3 there should be a link to the later section in Part 5 where this is referenced, so it is clear where there is overlap for authorised persons using the Code.

I have long advocated for free independent legal advice and advocacy for victims when their Article 8 rights are in play and do so again in this submission. This is a legal process which most ordinary people are ill equipped to navigate, just as suspects are entitled to free representation from a lawyer at the police station to ensure their rights are protected, so too should victims be afforded this help.  This representation should obviously be by lawyers, the consideration of the tests within the Criminal Procedure and Investigations Act 1996 and its Code (CPIA), the case precedents on these points, in particular in respect of third-party material the case of R v Alibhai [2004] EWCA Crim 681 (Alibhai) referred to by the Information Commissioner in his recent opinion and the balancing of Article 6 with Article 8 rights being complex questions of law. 

A final overarching point which has been made by The Centre for Women’s Justice (CWJ), Rape Crisis England and Wales (RCEW) et al in their response to this consultation is that the dCoP is constructed around the Human Rights Act 1998 and the Data Protection Act 2018 as the foundational framework for extraction, at the time of writing the government intends to repeal the Human Rights Act 1998 and to ‘reform’ the Data Protection Act 2018, which leaves victims and victims’ groups with a high degree of uncertainty in reading and commenting upon this dCoP.

As Victims’ Commissioner I have limited my comments to the operation of section 37 for law enforcement purposes as it impacts victims.

The Consultation Questions

Part 1 of the code provides information on when the section 37 and 41 powers can be used and the criteria that must be met before doing so.

Q1. To what extent do you agree or disagree with the guidance the code of practice provides on the circumstances in which the powers can be used and the requirements that must be met?

a) for Section 37?

Strongly agree, Agree, Neither agree nor disagree, Disagree, Strongly disagree

Please explain the reason for your answer

This section should be read with caution as although it does outline the current position, we know that government is looking to repeal or otherwise amend the relevant legislation.

In paragraphs 12-14 the effect of the dCoP is outlined which specifies that although failure to follow the code doesn’t leave the individual authorised person liable to criminal or civil proceedings, the Code is admissible evidence and could be used in criminal or civil proceedings to help determine the question in the case, there is an example of admissibility, but this should be expanded to include other possible outcomes such as judicial review.

There should also be more detail on the specific likely outcomes for officers failing to comply, so that it is clear government’s intention that the Code will be followed.

Part 2 of the code provides an overview of how the new powers interact with the data protection regimes of the Data Protection Act and the UK General Data Protection Regulation (UK GDPR), and human rights legislation.

Q2. To what extent do you agree or disagree with the guidance that the code of practice provides on the exercise of the powers in accordance with data protection and human rights legislation?

a) for Section 37?

Strongly agree, Agree, Neither agree nor disagree, Disagree, Strongly disagree

Please explain the reason for your answer

This section should be read with caution as although it does outline the current position, we know that government is looking to repeal or otherwise amend the relevant legislation.

I would signpost the response of the Information Commissioner’s office who have greater expertise in this area. I am pleased to see Article 8 rights front and centre though, as it is the routine infringement of victims’ Article 8 rights that led to the government introducing these balancing amendments into this legislation.

Part 3 of the code provides information on when and for what purposes the section 37 and 41 powers can be used, and guidance on reasonable belief, necessity, and proportionality requirements.

Q3. To what extent do you agree or disagree with the guidance offered in the code on assessing necessity, proportionality, relevance to reasonable line of enquiry or reasonable belief when determining when the powers in sections 37 and 41 should be used?

a) for Section 37?

Strongly agree, Agree, Neither agree nor disagree, Disagree, Strongly disagree

Please explain the reason for your answer, including any alternative approaches or changes to the guidance you think are needed

This is section requires further work.

Firstly, I would urge government to use examples that clearly demonstrate to the user of the Code how they might assess what is reasonable, necessary and proportionate or otherwise. So, for example this section doesn’t explicitly state that downloading and scrutinising the entirety of a victim’s phone is very unlikely to meet these tests; that should be explicit. Although the principle of reasonable line of enquiry will differ from case to case as will proportionality and necessity some clear examples could help enormously here. 

Secondly, it should be made very clear what kind of alternative means of obtaining material should be considered.

Thirdly, over and above the first point I agree with CWJ, RCEW et al the safeguards contained in the dCoP to prevent excessive download are inadequate. The test of ‘unless reasonably practicable’ is not the proportionality test set out in data protection legislation which insists that information extracted is minimised and could mean that the entirety of a victim’s device is downloaded due to the limitations in technology of that particular police force.

Allied to this para 52 also outlines that as part of the necessity and proportionality test the authorised person must be satisfied that the purpose cannot be achieved through less intrusive means. It helpfully lists other methods which may avoid extracting excess information but later at paragraph 48 this is qualified with:

“The authorised person should consider the value of the information extracted for the relevant purpose and where possible ensure that the amount of information extracted is minimised.”                                                                                                                                                                                                                                                                                                                                                                     

The test is not ‘where possible’ information extracted should be minimised. The legal requirement in the DPA should be more clearly stated.

Paragraph 49 reiterates the ‘unless reasonably practicable’ test in the legislation, I have been troubled by this since the original drafts. This is incompatible with the legal framework in the DPA. It is not mentioned anywhere in the key case of R v Carl Bater-James and Sultan Mohammed [2020] EWCA Crim 790. Processing on a less intrusive basis is always the aim to meet the requirement that processing is strictly necessary and proportionate, and a lack of practicability is not a reason to opt out of this aim.  The Code must be clear that the least intrusive means of processing is necessary to meet the strict necessity and proportionality tests.

I do not disagree with the suggestion from CWJ, RCEW et al in their submission that there should be a review mechanism in this regard, but I am firm that victims require free legal representation as outlined further below.

Part 4 of the code provides guidance on the criteria that must be met for a person to be treated as having voluntarily provided a device and agreed to the extraction of information from it.

Q4. To what extent do you agree or disagree with the guidance the code of practice provides on how authorities meet the requirements stated in section 37(1) in the Act, to ensure a person has voluntarily provided their device and agreed to the extraction of information from it?

Strongly agree, Agree, Neither agree nor disagree, Disagree, Strongly disagree

Please explain the reason for your answer

I have concentrated the bulk of my response here as it is in the operation of section 37 that victims are most implicated.  I have provided specific comments on numbered paragraphs below but overarchingly this section needs more detail and contains some missed opportunities.

I also endorse the comments of CWJ, RCEW et al in their submission about the written agreement and notice. These must contain full details including what specific information is sought and how it pertains to a reasonable line of enquiry, what less excessive means have been considered and a rationale of why the information extraction is deemed necessary and proportionate. The notice should further contain information about how collateral information will be managed, when the device is likely to be returned and how a complaint can be made if a request is thought to be excessive.

Voluntary provision, agreement and undue pressure

83. There is mention here of consent in writing, I think this dCoP is a missed opportunity to mandate that forces should be using the current NPCC data processing notice (DPN).  The current position is that whilst forces are encouraged to use this, they do not have to and the NPCC have no powers to compel them to do so.  The Code should create an expectation on forces that this will be standard practice. 

Additionally, I have been working with the NPCC on the current DPN and have urged them to create both an ‘easy read’ and an ‘easier to read’ version of the DPN.  This legal document is quite impenetrable for most people, especially when you consider the average reading age in the UK is 9 years, hence an easier to read version is necessary especially as currently very few victims if any have access to legal advice to assist them with this decision. Indeed, very few have access to non-legal support such as an Independent sexual violence adviser (ISVA).

The easy read version is necessary for those victims who have learning disabilities or difficulties, in order that they can be participants in the process, notwithstanding that they may not be able to give consent themselves – see comments below on adults without capacity and vulnerability.

Indeed, there is an easy read and an easier to read (aimed at young people) summary of rights for suspects under the Police and Criminal Evidence Act 1984 and its Code which should be provided to them as a matter of course it is only right and fair that victims are given a similar opportunity to understand what their rights are in situations where they are asked to waive them or partially waive them.

85. I would argue that truly informed consent to this legal process cannot be given in the absence of free independent legal advice from a qualified lawyer.  I know government is looking at this possibility following the End-to-End Rape Review (EERR), I take this opportunity to once again urge government to expedite this and to include access to legal advice and advocacy in the Code. The impenetrability of the consent form serves to demonstrate just how complicated this is for a non-legally qualified person let alone one who has experienced trauma to navigate.

87. The written notice is key and of course the NPCC DPN mentioned above does contain a section for officers to make clear their reasoning for pursuing such information but I have heard from stakeholders that where this new DPN is in use it is not always being filled out before being presented to victims for a signature, some officers are presenting a blank form and advising victims that they will fill it in after the event.  This clearly links to the point above (85) about informed consent.  It needs to be explicit in the Code that signed blank forms do not prove informed consent, indeed arguably the opposite.  Forms must be completed as outlined in point 87 prior to the authorised person seeking consent.

88. They should be informed about their opportunities to change their minds and withdrawal of consent.

90. As above I would assert this is a missed opportunity and the Code should explicitly state that forces are expected to use the current NPCC DPN.

Confirmation of voluntary provision and agreement

92. This section in lieu of further detail is dangerous. The Code should mandate provision of an easy read notice, this section should link to the section on vulnerability, and I am disappointed that there is no mention of intermediaries in this section or indeed at all.  There is no mention here of people who do not speak English or have English as a second language, this is a serious oversight, and the Code should be clear that in such circumstances an interpreter must be provided including a BSL interpreter for anyone who is deaf. I would urge government to ensure they work with those who represent victims who may fall into this category so that they are truly participants in the process and to ensure necessary safeguards for their Article 8 rights.

93. It seems very difficult to prove a lack of coercion via a record made by the authorised person.  I would urge that proper safeguards are put in place for those who are unable to provide written consent due to literacy or learning difficulties or having English as a second language. The already existing power imbalance between most victims and the authorised person is clearly heightened for those who fall into these categories and this again illustrates why free independent legal advice is in the interests not just of victims but also of the authorised person who can then demonstrate clearly that there has been no coercion.

Part 5 of the code provides guidance on what authorised persons should consider using the section 37 power with persons who may be vulnerable due to the trauma they have experienced, and who may need more support to make an informed decision as to whether they volunteer their device and agree to the data extraction from it.

Q5. To what extent do you agree or disagree with the guidance that the code of practice provides on how to recognise when a person is vulnerable?

Strongly agree, Agree, Neither agree nor disagree, Disagree, Strongly disagree

Please explain the reason for your answer

In my opinion this section requires quite a lot of further work, I think that it is vital government works with sector experts to make sure this section protects vulnerable victims from being coerced into providing information and to ensure their Article 8 rights are protected.  It attempts to offer greater protection for people who have experienced trauma but is too vague.  The list of potential vulnerabilities is lengthy but there is no explanation of the ways in which these vulnerabilities may overlap, interact or how they may mean a different approach is needed.  For example, the approach an authorised person may need to take with someone who is vulnerable due to trauma may be different to the approach they take with someone who is vulnerable because of a learning disability, which depending on the severity may mean they also fall into the category of being an adult without capacity.

I also have concerns about the lack of explanation of how trauma can impact decision making ability and what that means in the context of consent.

I am also concerned about the ways in which vulnerability is currently sometimes used as a reason to discontinue an investigation or not to charge an offence.  For example, I hear anecdotally that the mental health of a victim (particularly in rape cases) is sometimes cited as a reason to discontinue the case or is assessed to undermine the victim’s credibility as a witness. I worry that vulnerability may be seen as a reason to obtain more material from a victim and the implications this has for this process of seeking agreement. It would be terrible if the Code of Practice exacerbated this already problematic practice.

Q6. To what extent do you agree or disagree with the guidance that the code of practice provides on how a vulnerable person should be supported?

Strongly agree, Agree, Neither agree nor disagree, Disagree, Strongly disagree

Please explain the reason for your answer

Although it is undoubtedly positive that the dCoP allows for people considered vulnerable to be given extra support there are issues here:

Para 114. Lists people who could provide support to a vulnerable personwhich can include both specialist services and a friend or relative, whilst where there is no support service or ISVA available a friend or relative is preferable to no support.  The nature of that support is likely to be very different from the support an ISVA or specialist service could give, and all of these support options are not equal to proper legal advice and representation.  I would again use this opportunity to argue that it is imperative victims be given access to free independent legal advice.

Additionally, depending on the relationship to the victim (See para 131) the supporter may in fact not always have the victim’s wishes or even best interests as their primary concern.  I can foresee a situation where the supporter may think they are acting in the victim’s best interest by encouraging them to agree to a download when in fact this is not what the victim would want or may lead to the victim incriminating themselves in some way, although I understand that it is impossible for the Code to cover every possible scenario, it is why I think that this section would greatly benefit from input from sexual violence sector experts and other experts who represent the types of vulnerable people listed.

Para 124 Additionally, as stated elsewhere the code should mandate easy read and easier to read version of the DPN.

Para 129 There is an opportunity here to list alternative means of obtaining material such as screen shots.

Para 131 I have concerns about alternative coercive powers being used against victims in circumstances where they do not see themselves as victims, this should only occur as an absolute last resort.  This should be made very clear in the Code.

Para 132 Although it is true that some victims may feel more comfortable at home for some victims the idea of police being in their home could be highly upsetting and/or intimidating.  It is important that the needs and wishes of victims are properly considered here.

Para 133 Although I understand that the government made a commitment in the EERR to return phones to rape victims within 24 hours, I have cautioned against speed being the main target here lest it encourages more wholesale downloads as this is quicker/ easier for the police. It would be encouraging to see a link here guidance on targeted downloads such as the College of Policing Guidance Authorised Professional Practice Guidance.

Part 6 of the code provides information on who is deemed to be a child or an adult without capacity for the purposes of the powers, who can make a decision on their behalf, and how they should be engaged with and supported during the process.

Q7. To what extent do you agree or disagree with the guidance the code of practice provides on who is considered a child, how authorities must where possible involve and support them, and who can make decisions on their behalf?

Strongly agree, Agree, Neither agree nor disagree, Disagree, Strongly disagree

Please explain the reason for your answer

I again would urge consultation with experts on children’s rights and safeguarding.

Para 145 There should be some discussion of what happens in circumstances that an allegation has been made against someone within the organisation, there is a clear conflict of interest if for example an allegation is made by a child against a worker at their care home and another worker is asked to provide agreement on their behalf.

Para 147 – 151 The police should not be able to ask another police officer to act as responsible person when they are looking to use the power for the purpose of preventing, detecting, investigating or prosecuting crime even in circumstances where the officer performs a different function.

Q8. To what extent do you agree or disagree with the guidance the code of practice provides on who is considered an adult without capacity, how authorities must where possible involve and support them, and who can make decisions on their behalf?

Strongly agree, Agree, Neither agree nor disagree, Disagree, Strongly disagree

Please explain the reason for your answer

I again would urge consultation with experts on adults without capacity and safeguarding. I spoke with Stay Safe East (SSE) who unfortunately do not have the resource to be able to respond to this consultation, they raised serious concerns about social workers and parents/ guardians/ carers acting as ‘consenting adult’. Government must work with expert groups such as SSE to ensure this Code is as comprehensive as possible and that appropriate safeguards are in place to avoid any abuse of power or over intrusion on this cohort.

Ruth Bashall (Policy and Projects Adviser from Stay Safe East) has concerns about contexts where the parent/family member/guardian is the abuser which she feels are not adequately addressed in the code.

She says, whilst the dCoP talks about adults without capacity, the legislation is clear that very few people have no capacity at all and in this scenario of the police wanting to access someone’s phone, if the person completely lacks capacity to consent, it is unlikely (though possible) that they would have the capacity to use a mobile phone independently. This means that the vulnerability section is vitally important as in her opinion this will reflect the majority of victims in the adult with learning disabilities category.   

It is important that family members are only involved once it has clearly been established that they are not the source of or linked to the abuse.

It should not be left to a family member to explain what is in fact a complex legal situation.  This should be undertaken as a form of assisted/supported decision making by an advocate who has the skills to evaluate whether the victim understands the implications of consenting (ISVA, IDVA, learning disability advocate if appropriate, IMHA etc.).  This would also help make sure that the victim is signposted to specialist support or advocacy support for further support.

Ruth feels strongly that using someone other than family, guardian or social worker (whom many disabled people don’t trust) should be the default position.

I would also signpost the appropriate adult scheme which operates for suspects.  Though not without its faults this has safeguards in place to help avoid conflicts of interest and could be used as a basis for drawing up a similar framework for this victim cohort.

My comments above for Q7 also apply here.

Part 7 of the code provides guidance on applicable devices, ensuring that the extraction of information is not excessive and that the intrusion into the device user’s privacy and the privacy of others is minimised.

Q9. To what extent do you agree or disagree with the guidance the code of practice provides on applicable devices for extraction, and the recommendation that selective extraction should be used where possible to minimise intrusion into the device user’s privacy?

Strongly agree, Agree, Neither agree nor disagree, Disagree, Strongly disagree

Please explain the reason for your answer

In addition to my earlier comments in Part 3 some of which are pertinent here, I would emphasise referencing other guidance such as the College of Policing guidance mentioned above would helpful.  I also think this is a good place to add that speed should not come at the sacrifice of specificity.

Part 8 of the code sets out how authorised persons should consider confidential information when using these powers, including what confidential information is, guidance on how to assess the risk of obtaining confidential information and guidance on how to proceed depending on that risk assessment.

Q10. To what extent do you agree or disagree that with the approach the code of practice provides on how to assess and manage the risk of obtaining confidential material, and how to proceed when it is unintentionally obtained?

Strongly agree, Agree, Neither agree nor disagree, Disagree, Strongly disagree

Please explain the reason for your answer

I assume that you are referencing here para’s 54 onwards in Part 3 as I cannot find a Part 8.  If this is correct, I have no further comments.

Thinking now about the overall approach to the exercise of the powers that is recommended in the code.

Q11. In your view is the suggested approach to use of the powers detailed in the code one that can be implemented operationally?

Yes or No

Please explain the reason for your answer

The overall approach is a good start but will not as outlines above bring about the culture change needed here.

Q12. Are there any gaps in the guidance that should be addressed?

Yes or No

Please explain the reason for your answer

Please see other comments above

Q13. Does the code contain links to all relevant material that an authorised person would need in order to ensure lawful use of the powers?

Yes or No

There should also be links to the NPCC DPN, the College of Policing Guidance Authorised Professional Practice Guidance.

For further information please email victims.commissioner@victimscommissioner.org.uk.

The Rt Hon Brandon Lewis CBE MP
Lord Chancellor and Secretary of State for Justice

 23 September 2022

Dear Lord Chancellor and Secretary of State for Justice,

The Victims’ Commissioner is the pre-eminent independent voice for victims. The role is to champion the interests of victims at the highest levels, to influence policy, legislation and practice on the ground. It is a unique and unrivalled office that delivers real and lasting change for victims of crime and I am immensely proud of the achievements secured under my tenure.

As you know, my first term as Commissioner was to end this June. In February, your predecessor informed me that he intended to open the post to competition. I was strongly encouraged by him, in public and in private, to apply. This was a perplexing duality: I was not to be reappointed (as my predecessor was), but I was at the same time actively encouraged to apply. Nonetheless, as suggested, I applied in good faith.

At the request of the former Lord Chancellor, I also extended my term by one month. At the time, the long-promised Victims’ Bill was finally emerging and in need of much improvement. My office had carried out a dozen victims’ roundtables and sent in abundant recommendations to officials but little of that work was reflected in the Bill. It was therefore vitally important to me that the Victims’ Commissioner make representations to the Justice Committee and I was happy to extend for this reason.

An important part of my role is access to ministers on behalf of the people I represent and serve. Prior to this year, we have made progress for victims largely through the responsive attitude of previous Secretaries of State. It was notable that the former Lord Chancellor had not met with me once since February. The lack of engagement from the top at a time of great upheaval for victims reflected poorly on the Ministry of Justice’s priorities and the government’s approach.

Early in July, I was phoned by officials and brusquely informed that there would be no appointment from the recruitment process after all. Subsequently, I sought and received assurances from the Ministry of Justice that I had in fact been an appointable candidate. Nevertheless, the recruitment exercise was still to be aborted and rerun. Months of additional uncertainty were heaped on an already disrupted and destabilised office and my excellent staff. Once more I was urged to apply. Once more I was asked to extend my term – this time until the end of the year. With the Victims’ Bill still in draft, I made arrangements as best as I could to stay until at least 30 September and to consider any further extension in due course.

Asking me to re-apply given that two opportunities to re-appoint me have already passed and my office is no longer given much access to ministers seems more a ploy to keep me in place as a nominal post-holder in the short-term than a genuine invitation. Coupled with this, the Victims’ Bill remains inadequate and the ‘British Bill of Rights’ so severely threatens victims’ human rights that it undermines what little progress the Victims’ Bill is set to bring. I am told the Bill of Rights is set to return in some form and that its withdrawal was only temporary.

Further, little has been done to effectively tackle the enormous and catastrophic backlog of cases, particularly in the Crown Court where the most serious crimes are tried. This has exposed victims of these crimes to intolerable delay, anguish and uncertainty. It is no exaggeration to say that the criminal justice system is in chaos.

This downgrading of victims’ interests in the government’s priorities, along with the side-lining of the Victims’ Commissioner’s office and the curious recruitment process make clear to me that there is nothing to be gained for victims by my staying in post beyond the current extension. As such, my term will end on 30 September.

I want to underline how significant this role is in driving forward much-needed change for victims. As Victims’ Commissioner, I have shone a spotlight on the dire state of rape investigations and prosecutions. I secured new privacy safeguards against intrusive and excessive requests for personal mobile phone data in rape investigations. I successfully campaigned for rape victims to pre-record their evidence and cross-examination, sparing them years of anguish awaiting their day in court. I continue to push for increased protections restricting the disclosure of victim therapy notes and third-party victim data. And I have maintained pressure on agencies to increase their shamefully low charging rates. I urge you to reaffirm the government’s commitment to the ambitions of the rape review to drive charging rates back to 2016 levels by the end of this Parliament.

I have consistently advocated for the victims’ sector at the highest levels, most notably ensuring emergency funds were directed to support services straining under the extraordinary pressures of the pandemic. Furthermore, I have spearheaded important research in much-neglected areas such as fraud, online abuse, and the rights of families bereaved from homicide abroad. This research has instigated much needed change. The Victims’ Bill must build on this and afford my successor the authority to make recommendations and compel relevant authorities to respond.

It has been an honour to represent victims’ interests during a period of immense and unprecedented challenges, most notably COVID-19. While the pandemic is abating, the criminal justice system has only sunk deeper into crisis. A strong, independent Victims’ Commissioner has never been more important. The role must not be allowed to lie dormant like the Independent Anti-Slavery Commissioner.

I am grateful to the former Secretary of State, David Gauke, and Prime Minister, Theresa May MP, for appointing me to this role. I pay tribute to the professionalism and dedication of officials and of the victims’ sector who work tirelessly to improve the position of victims. And I pay thanks to those Justice Secretaries and multiple Victims’ Ministers who have worked in good faith with me during my tenure.

My contract ends on 30 September. I seek no further renewal and will leave my post on that date.

Yours sincerely,

Dame Vera Baird KC
Victims’ Commissioner for England and Wales

As is normal practice for my office, and in the interests of transparency, I will publish this letter on my website.

The Rt Hon Brandon Lewis CBE MP
Lord Chancellor and Secretary of State for Justice
Via email

21 September 2022

Dear Lord Chancellor

Expenses for victims delivering Victim Personal Statements

I have recently had an issue drawn to my attention that I would, in turn, like to raise with you.

Victims, when giving evidence as a witness in court, are able to claim expenses for costs such as travelling expenses, meals, loss of earnings and childcare. This is quite right as they deliver their essential role in the criminal justice system.

However, just as important is the Victim Personal Statement (VPS). Victims have a right, contained within the Victims’ Code, to provide a VPS to explain the impact that a crime has had on them. Furthermore, they have a right to read this in court if they opt to do so. A VPS is crucial to criminal justice as judges and magistrates take it into account when assessing the harm caused by an offence. Furthermore, this provides victims with a rare and valuable opportunity to express, in their own words, the profound impact a crime has had in their lives. After a harrowing trial, the VPS is an opportunity to empower victims and give them a meaningful voice.

It has been brought to my attention that, whilst victims are able to claim expenses for providing evidence at court, they are not able to do the same for delivering their VPS at a later date.

This discrepancy between the two court appearances is likely to have a profound impact on victims. Victims are encouraged to provide a VPS and, indeed, it is valuable and empowering for them to do so. However, it cannot be right that they are not able to claim expenses for attending court for this event. This anomaly is likely to mean that some victims are not able to address the court and the person who has offended against them. Furthermore, it suggests that the court values their attendance for the purposes of giving evidence, but not for delivering their VPS.

I would be grateful if you could look into this matter so that we may understand why this is the case and seek to resolve the issue.

As is my normal practice, and for the purposes of transparency, I publish letters on my website unless there is reason not to do so.

Kind regards,
Dame Vera Baird KC
Victims’ Commissioner for England and Wales

See the Ministry of Justice consultation pages (closing date: 5 August 2022).

Consultation response via email: cics-review@justice.gov.uk

5 August 2022

Dear Deputy Prime Minister,

Criminal Injuries Compensation Scheme Review: Supplementary consultation

The Victims’ Commissioner is in place to represent the interests of victims and witnesses. I am writing in response to the above-mentioned consultation in this capacity. The consultation sets out potential changes to the Scheme’s so-called ‘unspent convictions’ rule, which prevents individuals who have committed serious illegal acts from benefitting from state-funded compensation.

The consultation references my predecessor’s report ‘Compensation without re-traumatisation’ from 2019. I have been pleased to work with Linda Brown and CICA and to see improvements to the services that victims’ receive. This should be celebrated. However, I recommend further referral to this report, which considers the issue of unspent conviction in further depth.

I would also like to refer you to my annual report for 2020/21 where I further comment on other areas impacting CICA, which remain unresolved, including the need for the criminal injuries compensation to be extended to those who have lost a loved one to homicide in another jurisdiction. I understand that the government is planning to publish its response to the initial consultation on CICA reform in autumn this year and I urge you to do so in order that these victims are able to claim compensation as soon as possible.

This particular consultation asks for views on a number of options, notably:

• introducing exemptions to the exclusionary part of the rule, such as by reference to specified classes of victims, so that not all claims are automatically rejected on the basis of a specified unspent conviction;
• amending the terms of the exclusionary part of the rule by reference to the type of conviction included, to reduce the number of claims that would be automatically rejected on the basis of a specified unspent conviction; and
• removing the exclusionary part of the rule, so that no claims would be automatically rejected on the basis of a specified unspent conviction.

I share the view of stakeholders such as The Independent Inquiry into Child Sexual Abuse (IICSA) and the APPG for Adult Survivors of Childhood Sexual Abuse that the rule making claimants with unspent convictions ineligible to claim compensation should either be revised to give decision-makers case by case discretion or abolished altogether.

The scheme fails to consider victims who have been forced to offend by their exploiters and abusers or those whose damaging exposure to sexual or domestic abuse has contributed to their subsequent criminality.

Any argument that offenders must fairly bear the consequences of their offending, including exclusion from compensation, presents a binary view of criminality and victimisation at a time when the rest of the criminal justice system, law enforcers, prosecutors and sentencers, are becoming increasingly aware of the interaction between being a victim of crime and becoming a defendant. There is an increasingly well-understood overlap between the two.

There is also disproportionality built into this exemption, since a minor unspent offence loses the claimant compensation even where they may have sustained lifechanging injuries.

I would like to see Tribunal members dealing with criminal injuries compensation appeals once again having the power to exercise judgment / discretion over who should and who should not be disqualified from compensation through unspent offences. They are highly qualified and are accustomed to assessing what is fair and able to exercise good judgement in a graded and nuanced approach to what is just.

I trust that this is of use and look forward to seeing the results of the consultation at the soonest opportunity.

Kind regards,
Dame Vera Baird QC
Victims’ Commissioner for England and Wales

Dear Tom

Access to sentencing remarks for victims of mentally disordered offenders

Many thanks for your recent letter on this subject, which was helpful.

My Office has been in contact with Julian Hendy to discuss your letter and would like to follow up with some additional queries. The experience of Hundred Families is that obtaining sentencing remarks can be somewhat of a lottery, dependant on the individual court officials’ knowledge of the system and entitlements for victims.

We would therefore welcome further information on:

• How information and guidance on obtaining sentencing remarks will be disseminated effectively to Victim Liaison Officers (VLOs) and court officials, and
• What mechanism will be available for families who do not have a VLO to apply to courts for copies of sentencing remarks?

I would be most grateful if you were able to respond with this additional information.

Our usual practice, in the interests of transparency, is to publish our correspondence on our website shortly after sending unless there is reason not to do so.

Kind regards,
Dame Vera Baird QC
Victims’ Commissioner for England and Wales

26 July 2022

Dear Dame Vera,

ACCESS TO SENTENCING REMARKS FOR MENTALLY DISORDERED OFFENDERS

Thank you for your letter of 15 March on behalf of Julian Hendy, CEO of the charity ‘Hundred Families’. I know that Mr. Hendy is concerned that the process for obtaining Judges’ Sentencing Remarks (JSR) is inconsistent and not always straightforward. I apologise for the delay in responding.

Information and guidance for staff on the provision of the JSR for the family of victims in homicide cases is set out in Her Majesty’s Court and Tribunal Service (HMCTS) ‘Crown Court Manual’. The manual is published internally only. Although there is a written procedure in place, unfortunately such procedures can sometimes be inadvertently overlooked. Prompted by your letter, HMCTS has undertaken to remind court officials of this process through its internal communication channel “Need to Know”.

I am pleased to report that the Mental Health Casework Section within Her Majesty’s Prison and Probation Service is aiming to finalise guidance to Victim Liaison Officers (VLO) later this month. This guidance will provide details of how VLOs can request sentencing remarks for restricted patients.

HMCTS does have an existing process whereby family members without a VLO can apply for a transcript of the JSR using Form EX107. HMCTS acknowledges that this process is cumbersome and too complex and that a better system needs to be put in place. There is a degree of complexity involved in such a process change, not least because it is not an internal process for HMCTS. HMCTS has undertaken to complete this work by the autumn.

Once again, thank you for having taken the time to write and I trust that this reply is helpful.

Yours sincerely,
Tom Pursglove MP

28 July 2022

Dear Tom,

Criminal Justice System Delivery Data Dashboard

I understand that you are now the Minister with responsibility for the End-to-End Rape Review. This is an incredibly important area of work that complements your existing portfolio for victims and witnesses and I wish you all the best with this work.

I am writing to you now with correspondence previously sent to Victoria Atkins as Minister with this responsibility. I am writing in order to outline some issues with the data dashboard and request your help to resolve these problems.

The Rape Review has placed a significant focus on data. This is in place to monitor performance, measure progress and, where appropriate, deliver accountability. Indeed, the recently published Rape Review Progress Updates point to the CJS Delivery Data Dashboard as:

“increasing transparency, helping us to shine a light on what victims really care about, and giving Government and local leaders the information they need to do better for victims.”

As I share your resolve to right the wrongs faced by rape victims, my office was keen to access and use the dashboard. Unfortunately, there are a number of areas where it falls short and where I would welcome an explanation and resolution from you.

Missing data
The dashboard does not currently monitor two important areas:

1. There is no data on conviction rates included within the dashboard.
2. There is no data on the Victim Right to Review within the dashboard.

Your foreword to the Rape Review Progress Update rightly focusses on conviction rates. However, the dashboard does not include data on this area. This is a clear measure of justice for victims and the dashboard is incomplete without it.

The Victim Right to Review (VRR) is another important measure for transparency. Measuring the number of VRRs, proportion that are successful and the proportion that go on to secure a conviction is an important metric to understand the health of the criminal justice system and victims’ ability to challenge it.

I urge you to add these metrics to the dashboard in order to deliver the transparency it seeks to provide and which it is unable to do so without this data.

Challenges with the dashboard
My team have also identified a number of practical issues which we’d welcome your explanation and resolution of, namely:

The three main metrics in the dashboard (number of suspects referred by police to the CPS, number of suspects authorised to be charged and number of receipts at Crown Court) are only presented as absolute numbers rather than proportion of cases. As the number of recorded rapes has increased by c20,000 cases since 2016, we would expect these numbers to increase without a proportional improvement across all victims. In order to provide full transparency and accountability, the dashboard should also present this data, and comparison to the 2016 benchmark, as a proportion of all victims. Taken together, these will provide a wider and balanced measure of progress following the Rape Review.

The data in the dashboard cannot always be reconciled to the data source they have used. In some cases, (for example, pre-charge receipts) my team have found that this data is published by other sources, in this case the CPS. However, the dashboard currently states that “this metric is not published outside of this dashboard” and the two sets of data cannot be reconciled. This mismatched duplication of figures is confusing and risks undermining confidence in the dashboard, particularly so when the source of the data in the dashboard is not cited. There are further similar examples. This makes monitoring the data impossible and undermines its legitimacy. It is important that the data in the dashboard has a cited source and any discrepancies from other published data are either resolved or fully explained.

Finally, many of the links to data sources included in the dashboard simply do not work. This, again, risks transparency and confidence in the dashboard and undermines the effort and work that has gone into develop this accountability tool. It is fundamental to be able to cite a source for data and transparency simply cannot be delivered without it. I would welcome a review of the dashboard to ensure that these links are functional.

I welcome your resolution to make progress on this key area of work and applaud the move to publish data as a means for public accountability. There is real potential for accountability if the dashboard is presented effectively. I therefore welcome your intervention and help to resolve these problems and ensure that the tool delivers robust data, that stands up to scrutiny and that victims and their advocates can have confidence in.

It is my normal practice, in the interests of transparency, to publish my correspondence with ministers.

Kind regards,

Dame Vera Baird QC
Victims’ Commissioner for England and Wales

The Home Office is running a consultation exercise gathering information about police requests for personal data from third parties, such as the NHS or local authorities, when investigating crimes.

The consultation closes on 11 August.

The Victims’ Commissioner has prepared guidance to inform how organisations and individuals might respond to this consultation. It is vital that the responses reflect the extent of the issue and encourage government to legislate in this area.

For any questions or if you need the guidance in a different format, please email victims.commissioner@victimscommissioner.org.uk.

Key links

• Home Office consultation: Police requests for third-party material (closes 11 August 2022).
• Letter to Rachel Maclean MP on Home Office consultation on third-party material requests (22 June 2022)
• Response from Rachel Maclean MP on Home Office consultation on third-party material requests (29 June 2022)
• Briefing pages on Police, Crime, Sentencing and Courts Bill, including briefing papers on third-party materials

The Right Honourable
Dominic Raab MP
Deputy Prime Minister
Lord Chancellor & Secretary of State for Justice

Dame Vera Baird QC & Nicole Jacobs
5th Floor, 7 Petty France,
London
SW1H 9EX

By Email Only

4 July 2022

Dear Vera and Nicole,

BILL OF RIGHTS

Thank you for your letter dated 10 June 2022, regarding the Bill of Rights and its impact on the rights of victims and survivors of domestic abuse and sexual violence.

This Government was elected with a manifesto commitment to ‘update the Human Rights Act… to ensure there is a proper balance between the rights of individuals, our vital national security and effective government’. It has been in force for over 20 years now and it is entirely right that we should seek to update it. We need to make sure that our human rights framework continues to meet the needs of the society it serves. That is why I introduced the Bill of Rights to Parliament on 22 June.

This country has a long and proud tradition of freedom which our Bill of Rights will enhance, for example, in respect of free speech and recognition of the role of jury trial. Our reforms will curtail the abuses of human rights, restore some common sense to our justice system, and ensure that our human rights framework meets the needs of the society it serves. The Bill of Rights will also strengthen protection of victims in a range of ways, for example the provisions that relate to the deportation of foreign national criminals, and the emphasis the Bill gives to public protection in support of our parole reforms. To be clear: far from weakening the position of victims, the Bill of Rights will reinforce key safeguards.

As we make these reforms, we are clear that we are committed to remaining party to the ECHR and the Bill incorporates all of the rights in the Human Rights Act. In relation to the application of positive obligations on public authorities, in future our courts will consider a range of factors when applying existing positive obligations rights such as the police’s own expertise in managing resources. This will enable operational experts to exercise their judgment in deciding how best to serve the public, rather than having to act to mitigate costly litigation.

Regarding the experiences of victims, the Victims’ Code sets out in clear terms what support they can, and should, expect from the criminal justice system, and how the relevant agencies best serve the public with regard to victims’ entitlements. But what your letter points out, and the responses we received to our Delivering justice for victim’s consultation were clear on, is that victims are not always aware of these entitlements, or get them. That is why the Victims Bill and wider package will amplify victim’s voices, improve support to victims and strengthen oversight of criminal justice agencies. The Bill will also enshrine the Victims Code in law to increase awareness of the Code and together with the measures to enhance oversight of its delivery, send a signal to the criminal justice agencies that they must deliver these entitlements for victims.

Yours sincerely,

RT Hon Dominic Raab MP

See the Victims’ Commissioner’s consultation response and guidance (27 July 2022)

See the 22 June 2022 letter.

Rachel Maclean MP
Minister for Safeguarding
2 Marsham Street
London SW1P 4DF
www.gov.uk/home-office

Dame Vera Baird
Office of the Victims Commissioner
By e-mail only

29 June 2022

Dear Dame Vera,

Thank you for your letter of 22 June. I appreciate the time you have taken to read through the consultation and for setting out your views.

The Government has made much progress in relation to police requests for victims’ personal data, although these were regrettably not referenced in the recent ICO Opinion. Most notably, there was no reference to the Police, Crime, Sentencing and Courts Act, which, as you are aware strengthens the law to ensure that police don’t make excessive requests for digital information belonging to victims.

I noted your comments on the consultation. Whilst there have been multiple mentions of the issues related to third party material across several reports, this consultation focuses solely on this topic and will give us deeper insight. For example, we know that lengthy investigations can add to victims’ distress and we need to better understand why it can take a long time for these requests to be fulfilled.

The consultation will additionally allow us to test policy proposals, which we have developed based on the existing information we have about the problems associated with requests for third party material. Victims will be at the heart of any changes we make in this area. However, we also need to ensure that updates to legislation, policy or process are workable for operational partners, which is why we are also seeking their views as part of the consultation.

The Attorney General’s Office have looked closely at the issues you have raised around the removal of the Alibhai case from CPS guidelines. I agree with the Attorney’s position on the matter, which is well expressed in the recent Annual Review of Disclosure.

Regarding your specific comments on the new duties proposed within the consultation, NPCC are currently developing new third party material notices that require officers to set out why a request is proportionate. I understand that these notices have been sent to your office as part of NPCC’s consultation and welcome your input to ensure they are fit for purpose.

Finally, thank you for your additional recommendations. In terms of legal support for victims, the Ministry of Justice has recently concluded a consultation on this issue. The responses to this consultation are being carefully considered, and I believe officials are engaging with you on this work. I also note your recommendation for the legislative provision for privilege around therapy notes. I will liaise with my colleagues across government to make them aware of your recommendations as these may fall outside of the scope of this consultation.

Thank you again for your commitment to this work, for which I am most grateful. I look forward to your response to the consultation and to seeing you on June 29 at the roundtable session to discuss these issues.

Rachel Maclean MP
Minister for Safeguarding