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Dear Lord Chancellor

I am writing to you to set out the case for your Department to undertake a review of the funding of legal representation at inquests in all cases where someone has died whilst in the custody or care of public authorities, or where a public authority is involved in the circumstances of the death.

In making this request, I am working with Rt Rev Sir James Jones, former Bishop of Liverpool, who led the Hillsborough Independent Panel and authored the report: Patronising disposition of unaccountable power; the human rights charity, JUSTICE, which published its report: When Things Go Wrong: the response of the justice system in August 2020; and the charity INQUEST, which provides expertise on state related deaths and their investigation to bereaved people, lawyers and advice and support agencies.

The purpose of this review would be to give bereaved families access to free (non-means tested) legal representation whilst at the same time placing limits on the expenditure of the authorities who are named as interested persons. The desired outcome should be to give these families access to justice and ensure parity whilst incurring no additional cost to the exchequer.

The types of cases falling within the scope of this review would be those where death has taken place in circumstances where the role or responsibilities of public authorities are relevant to exploring how the death happened, for example a terror attack or the handling of a public safety incident such as Hillsborough. There may be a criminal element with perhaps a potential for civil liability on a public authority for exacerbating or failing to alleviate risk. The case might involve a single death, having taken place in a mental health setting, in police or immigration custody or in prison. Equally, such cases often form part of a wider narrative, in which “systemic patterns of failure” are an evident cause or factor.

I am aware the Government has conducted a Review of Legal Aid for Inquests. In its final report in February 2019, it said:

‘We have decided that we will not be introducing non-means tested legal aid for inquests where the state is represented. However, going forward, we will be looking into further options for the funding of legal support at Inquests where the state has state funded representation. To do this we will work closely with other government departments”.

Just to be clear, I am not calling for this decision to be overturned. What I am calling for is an alternative system to legal aid that provides for the provision of publicly funded legal advice and representation for bereaved families. It might be that this work is already underway as part of the Government’s investigation of ‘further options’, although more than two years has passed since the report and we are uncertain how far this work has progressed.

I acknowledge inquests are intended to be inquisitorial and not adversarial in concept. However, as JUSTICE pointed out in its report, when you have a number of public authorities all represented by counsel, the inquest can become ‘an adversarial wolf in inquisitorial sheep’s clothing’ as it becomes the arena where the accountability of the public bodies in question is tested. State bodies instruct legal teams and are unrestricted in the rates and quantum of funding and the level of representation.

In their oral evidence to the Justice Select Committee inquiry into the coronial system, INQUEST described how families go through the inquest process in the hope that they will get answers and acknowledgment of what went wrong. This hope is in the public interest, to identify faults and harmful practices that if put right could prevent future deaths. Yet those who support these families observe that this hope is all too often frustrated by a culture of institutional defensiveness from many public agencies at inquests, who are focused on reputational management rather than a meaningful search for the truth. It is manifestly unfair that in current coronial proceedings, a bereaved family is reduced to mere bystanders, beholden to the coroner to ask questions they wish asked on their behalf, should the coroner agree to do so, and in effect rendered legally defenceless..

This observation is not intended to be disrespectful of the role of the coroner, but, however skilled and committed, it is not possible for a coroner to enter into an in depth understanding of the interests and concerns of a family in the way that a lawyer may do, whose sole interest is to represent that family. It also does not satisfactorily meet the sophisticated and tactical cases put forwarded by represented public authorities.

Families do not have automatic access to legal aid or other legal funding. Some “Article 2” inquests are more likely to be amenable to legal aid funding for families. This may be via a grant of ‘legal help’ which allows for pre-hearing advice or via exceptional case funding, for advice and representation before and at the Inquest Hearing. However, legal aid is not granted in every Article 2 inquest, including inquests where the circumstances of the death are contentious. This means those closest to the victim, who have suffered life-changing loss, most of whom are not legally aided (which, in any event, is a complex, intrusive and distressing process at a time when they are grieving), are unlikely to be able to afford representation.

As taxpayers, these families are likely to be contributing to funding the legal representation of public bodies who may hold some responsibility for their loved ones’ death, yet they are being denied public funding for representation for themselves.

As Victims Commissioner, I share the Government’s commitment to ensuring that, in particular, victims of crime are given every assistance to: ‘Cope and Recover” from what has happened to them. This is the overarching aim to which governments over many years have committed funding for victims’ support services and which they have set out in the statutory Victims Code of Practice, the Victims Strategy and which is expected to be a central tenet of the proposed Victims’ Law. In order to ‘cope and recover’ from the death of a loved one, it is well established that the bereaved need to know and to understand how their loved one met their death and to have all their questions answered and their doubts met.

By recognising families as ‘interested parties’ as the law does, there is a clear intention to allow them to participate. It is well-evidenced, not least of all by my predecessor’s report: What Works for Victims that procedural justice, involving being treated with decency and concern, apprised of all relevant developments, furnished with information, given skilled and professional support and allowing the fullest engagement possible in proceedings is a key part of the restoration process required for the cope and recovery of a victim of crime.

There have been multiple official reports since Lord Macpherson’s in 1999 which have called for review or changes to the position for these families. Although the debate is often framed in terms of legal aid, the recommendations of these reports are essentially for non-means tested public funding for legal representation at an inquest.

For example, the report of the Independent Review of Deaths and Serious Incidents in Police Custody by Dame Elish Angiolini concludes there should be access for the immediate family to public-funded, non-means tested legal advice, assistance and representation immediately following the death and throughout the inquest hearing. Sir Simon Wessely ‘s Final Report of the Independent Review of the Mental Health Act recommended that funding should be available for the families of those who have died unnaturally, violently or by suicide whilst detained.

The Bishop of Liverpool’s report on the experience of the Hillsborough bereaved families (The Patronising Disposition of Unaccountable Power) included two points of learning covering this issue. The first reiterates my request, and the recommendation of the JUSTICE working party, that publicly funded legal representation should be made available to bereaved families at inquests at which a public authority is to be legally represented. The second was that the Government should identify a means by which public bodies can be reasonably and proportionately represented but are not free to use public money without restriction. This is important. Public authorities should be told to moderate the cost of their legal advice and representation, which, particularly in cases where a number of authorities are involved, can be a massive cost to the public purse. In his report, the Bishop called on the Government to identify a means by which public bodies can be reasonably and proportionately represented but are not free to treat public money as if it were limitless.

These circumstances give rise to two separate but related demands. One is that the State whose agencies are involved in the inquest should supply funding to provide for families to be represented where they wish to be. The second is that families should have access to legal funding for lawyers of their choice on a similar scale to that of the relevant State authority. It is inimical for the state to furnish, via the relevant public agency’s budgets substantial funding in a bid to safeguard public authority reputation and or liability yet provide no funding at all for those who have lost a loved one. There is a need for this imbalance to be addressed, “a level playing field” to be provided and the human rights concept of “equality of arms” to be made available.

One suggestion is the establishment of a separate and specific fund with its own criteria. It might possibly be retained and administered by the Ministry of Justice or by the Office of the Chief Coroner. Following the fund’s establishment, it ought to have the power to require contributions from public authorities who choose to be represented at inquests so that they will, at the same time, contribute to the fairness of the proceedings by sharing the cost of ensuring advice and representation and supporting the cope and recovery of families.

Another suggestion is that public authorities should match their own expenditure in a particular case with making an equivalent contribution to the family’s costs. The prospect of having to match funding in this way should incentivise public authorities to re-evaluate and restrain their own expenditure; provide more of a level playing field; and reduce the unfair in-balance of legal firepower commonly now distorting the nature of inquests in these cases.

In an inquest where several public authorities are represented, in either suggestion, they would all contribute, with any contribution proportionate but not linked to any finding of fault implicit or express in the inquest’s conclusions.

As ever, I am happy to meet with you and you officials to discuss this issue further.

In line with my usual practice, we will be placing a copy of this letter on my website. However, given we are in purdah, we will delay doing so until Tuesday 4 May.

Yours sincerely

Dame Vera Baird QC

Victims’ Commissioner for England and Wales

Contact us if you need this publication in another format.

Overview

Special measures are a series of provisions that help vulnerable and intimidated witnesses to give their best evidence in court and help to relieve some of the stress and anxiety associated with giving evidence. Under the Victims Code, all witnesses have the right to have their needs assessed by a police officer and the Witness Care Unit, a unit within the police force.

This review explores the current provision of special measures, from the initial assessment of witnesses’ needs all the way to trial. Drawing on testimony from criminal justice professionals and victim support services, it outlines victims’ and witness’ wider experiences of court and special measures, including during Covid, and makes 21 recommendations on how to improve the provision of special measures and address barriers to access.

See the full news story.

Watch the webinar.

The Victims’ Commissioner for England and Wales, Dame Vera Baird says:

“Special measures are not a ‘nice to have’ but are essential provisions for many witnesses and for the criminal justice system. Giving evidence to a court can be a worrying and, for some, traumatising experience. Special measures were introduced to make this easier for witnesses and to avoid unnecessary stress and distress. Some witnesses will not be able to give evidence at all without this help but not all victims and witnesses are getting the protections they need. And this is a major problem for the criminal justice system which needs to secure all the available evidence on both sides of a case.

“At a time when record numbers of victims of crime, including rape, are withdrawing from prosecutions, I hope this report and its recommendations help set an agenda for the next phase of special measures – one which makes navigating the court experience easier for more and more witnesses.”

Dear Kit

I have been approached on behalf of victims who were affected by the ‘same roof rule’ who are asking for the deadline for applications for criminal injuries to be extended by 12 months.

The so-called ‘same roof’ rule, blocked victims of violent crime from receiving compensation if the attacker was a family member they were living with at the time of the incident. It was amended in 1979 to not prevent future victims accessing compensation, but as common with many changes to the law this was not made retrospective. This has led to some victims of crimes which occurred before the law change missing out on compensation.

From 13 June 2019 some of these victims were able to apply for compensation as a result of new legislation coming into force which abolished the ‘same-roof’ rule. In practice, this meant anyone previously denied compensation under the rule, or put off from coming forward because of it, was able to make a fresh application.

These victims had until 13 June 2021 to apply to the Criminal Injuries Compensation Authority, where there is a dedicated team set up to provide extra support with the claim process.

The victims who have approached me have asked for the extension as they were planning to apply but the pressures associated with Covid19 and lockdowns have pre-occupied some and impeded their ability to get support in order to focus on past trauma without risking re-victimisation, especially in cases where lockdown has left them alone.

Furthermore, we are aware victim support organisations who might have been expected to assist some of these victims have been depleted and also very heavily focused on vulnerable victims who have been affected by the hidden harms arising from social distancing.

The last 12 months have been difficult for everyone and I very much hope you will be willing to extend the deadline to assist these victims.

Yours sincerely

Dame Vera Baird QC

Read the Minister’s response.

Overview

As Victims’ Commissioner for England and wales, although I appreciate this guidance relates to both victims, witnesses and suspects I will limit my comments in this response to reflect the needs of victims.

In recent years, the issue of digital disclosure, particularly in rape cases, has rightly been given a great deal of attention and scrutiny. There can be no question that ‘on the ground’ it has become practically routine for complainants’ of rape to be asked to hand over digital devices and for most or all of the material held therein to be trawled. Through my recent survey of rape complainants and through my network of stakeholders, I hear that the CPS will frequently seek this level of material and refusal to submit will result in the case not proceeding to charge. This is highly troubling for victims and ultimately will have a chilling effect on reports as well as having a direct impact on victim attrition.

I echo concerns of many senior police chiefs that there has been a fall in public and victim confidence in police in particular in relation to rape cases and the issue of digital data extraction plays a big role in this.

The Northumbria sexual violence complainant’s advocacy scheme pilot (SVCAS), which engaged local solicitors to provide legal advice and support to rape complainants in Northumbria primarily related to complainants’ Article 8 rights to privacy, demonstrated what is happening in practice, at least in that region, about 50% of requests were not strictly necessary and proportionate. These were challenged by the advocates through the scheme. As discussed in more detail below, the scheme proved to be useful for all the participants including the Police and CPS and I would urge the College to back it publicly.

Police, complainants and support workers who participated in the scheme expressed concerns about the current situation:

“I think a lot of things are asked for when we, the police in general in the past, not so much now, they just kind of hand it over without questioning it and I don’t think that’s, that’s sometimes the best way. ‘Cos there doesn’t really seem to be any, there’s not any of that for the suspect, let’s just say. So I think, you know, we need to have some sort of, some form of protection for the complainant as well.” (Police Officer 11)

“I could talk all day about third-party material, and it is the real bone of contention. It’s one of the things that has given me sleepless nights over the years, you know. It has… And I had a rape team investigator say to me on one occasion, or a former rape team investigator, say to me, ‘I had to like leave the rape team because of what I was being asked to do, in relation to victims, I couldn’t do it’. And I think, you know, that, for me just spoke volumes. And lots of people were expressing their concerns, including me, but when that officer said that to me, I kind of thought, d’you know what, there’s something sadly wrong here.” (Police Manager 1)

“I have had conversations with people in that sort of they are, they don’t want to give up their phone and that sort of thing. And I know that that’s been a bit of a barrier [to reporting].” (Support Worker 1)

“I would have to hand my phone over to the police. I had minimal contact with my abuser – maybe 2 texts – but I was promiscuous with others and knew that I would probably be questioned about that and judged for it.” (did not report)

“The first responders were good, however after that the whole process really stressed me out (having my medical records accessed and phone gone through), this had a negative impact on my mental health and felt like a massive intrusion… The impact on my mental health and being signed off work – I almost lost my job… The criminal justice process caused me more harm than good.” (reported 2019, withdrew)

The new guidance is an opportunity to re-balance this situation by ensuring victims’ Article 8 rights are considered and upheld. This will go a long way to minimising the re-traumatisation many experience in the system and restoring confidence in the police.

This new guidance has been drafted in part in response to the ICO report on digital disclosure and does, make attempts to address some of the concerns raised in that report. However, I remain concerned there are/have been various pieces of work in this area again triggered by that report and that without a more joined up approach, those on the ground may be at best confused or at worst operating in a contradictory manner. This is of particular concern as it applies to cross-agency working, with the recently consulted upon CPS RASSO guidance, the Attorney General’s guidance and this guidance not always well aligned. This should be addressed with urgency.

I understand the issue of ‘consent’ in data protection law as raised by the ICO report, and whilst we are less concerned about how it is named it is vital that a complainant’s digital devices and the ‘specific’ sought material within are only accessed when that complainant has given free informed agreement. Where that complainant does not have capacity to agree and thus someone else is asked to agree on their behalf (a parent/ carer etc.) their views are sought and recorded. The NPCC has requested a statutory power which deals with the issues arising from the ICO report with the common law gateway of consent and I anticipate this guidance will form a stop-gap because once that is in place the guidance will need to be re-written.

I am concerned to see mention of warrants being used in the guidance and would argue that such a coercive power should never be used on a victim/ complainant. In fact, the NPCC has been clear that the power in section 19 of PACE should never be used with victims precisely because it is coercive. As mentioned above, the new statutory power should help overcome some of the confusion and provide a clear power upon which the guidance can build.

I believe the steps outlined below would be in accordance with case law and will satisfy the ICO report. They also reflect a draft statutory provision currently being considered for inclusion in the Protection of the Police and Public, Courts and Sentencing Bill:

• 1. A police officer can if certain conditions are met extract information stored on an electronic device if the user has voluntarily provided the device and agreed to specified information being extracted from it.
• 2. The conditions are as follows:
  • i) The above (1) can only be exercised for preventing, detecting, investigating or prosecuting an offence, locating a missing person or protection of a child or ‘at risk’ adult from harm.
  • ii) The above (1) can only be exercised if the police officer believes that the information stored is relevant (relevant to a reasonable line of enquiry) to one of the above purposes (i) and it is strictly necessary and proportionate to achieve that purpose.
  • iii) Where there is a risk that ‘other’ information i.e. not that information necessary for one of the purposes above (i) the police officer must in order to demonstrate what they are doing is strictly necessary and proportionate and be satisfied that there are no other less intrusive means available.

When I say “consent” or “agreement” in relation to the extraction of information from a user’s device I mean a freely given, specific, informed and unambiguous indication of the individual’s wishes by which the individual, by a statement or by a clear affirmative action, signifies agreement to the extraction of information from the device which has been specifically identified in the request made to them by an authorised person. Agreement remains freely given in this context if the user is properly advised as to the potential implications of any refusal for a criminal investigation or prosecution if it has implications for compliance with an individual’s right to a fair trial.

This is broadly what is set out in your introductory paragraphs to the document:

“The powers to acquire a device are different to those that apply to device. Acquisition of the device would be under common law consent. In most investigative circumstances, officers or staff will be intending to take the device for the purposes of extracting data. Investigators should be considering and explaining the power to acquire the device and the power to acquire the data at the same time, therefore officers and staff should apply both the common law consent to the physical device and DPA 2018 requirements for the data.

Consequently officers and staff will:

• seek consent for the acquisition of the device, and
• believe acquisition of the data to be strictly necessary to satisfy a reasonable line of enquiry, and
• consider all other less intrusive means and decide that they are not able to provide the evidence in a way that will support the investigation of a reasonable line of enquiry, and
• seek informed, freely given permission to acquire the data

However, I have concerns that the process is not clear, the different powers and legal basis are confused, and the guidance is at times too contradictory and so it is entirely possible officers will stray from this stepped approach and this may lead to regional variation and some bad practice.

I am also concerned this guidance alone will not change the culture which currently sees routine disproportionate downloads. So, whilst it is good to see the ‘safety net’ of an inspector authorising a download, this is unlikely to bring about the needed culture change. Instead, good practice guidance should ensure that a paper record of the thought process of the officer seeking the data is recorded, so that at each stage of the above conditions the reasoning is recorded and can be scrutinised at a later point.

Finally, I have been unable to view the PSED assessment for this consultation but submit this guidance is likely to disproportionately impact certain groups with protected characteristics under the Equality Act. I would like to see discussion of this in the guidance and mitigating actions.

Summary

VAWG is undoubtedly a gendered issue and is high prevalence and high harm. It is a cause and consequence of women’s inequality and is internationally recognised as a human rights issue. As such any new strategy needs to remain grounded in these principles. We recognise that men and boys do suffer interpersonal violence, sexual violence and other forms of ‘VAWG’ abuses, as such government should ensure that they are catered for outside of this VAWG framework.

Any strategy MUST be created in collaboration with the specialist VAWG sector if it is to achieve its’ stated ambition of eliminating VAWG. New and emerging forms of VAWG are often very foreseeable and government should future proof this strategy by ensuring it works with experts in VAWG and expert academics to horizon scan.

The data that we have fails to reflect women and girls lived experience of VAWG and so the strategy must ensure that comprehensive disaggregated data is collected. Because VAWG is so pervasive it is vital that this strategy be truly cross-governmental to ensure that policy makers are able to view policy through a VAWG lens to avoid unintended consequences for women and girls.

The strategy must address the failings of the Criminal Justice System (CJS) which is not fit for purpose for the majority of VAWG offences, in particular in respect of rape which has been practically decriminalised.

The strategy should address prevention by looking at local grass-roots initiatives, making sure compulsory sex and relationships education is rolled out in schools and supporting the whole school approach. The best way to address perpetration is to create a bespoke strategy. It is vital that government commits to long-term sustainable funding for specialist VAWG services, that meet the needs of all women and girls.

Overarching Recommendations

1. The strategy must remain grounded in the internationally recognised framing of VAWG as a human rights issue.
2. Government must continue to recognise the gendered nature of all forms of VAWG.
3. Government must create this strategy collaboratively with the specialist VAWG sector and expert academics.
4. The strategy must be truly cross-governmental.
5. The strategy must compel the collection of comprehensive, comparable and disaggregated data on VAWG across government – at a minimum data must always be collected on the protected characteristics and immigration status for both victim and perpetrator and their relationship.
6. The strategy must compel DfE to roll out compulsory sex and relationships education and further to support a whole -school approach.
7. Government should commit to a perpetrator strategy as outlined in the EVAW VAWG snapshot.
8. The strategy must commit to effective CJS reform in order to make it ‘victim-friendly’.
9. The Impacts from Covid will be felt for many years to come, as such this strategy needs to factor this in.
10. The strategy must be delivered alongside a secure, national multi-year funding settlement for the specialist VAWG sector, which ensures all forms of service
    provision for survivors, children and young people and perpetrators are resilient for the future, provides equity of provision for survivors across the UK nations , and is delivered by all government departments responsible for VAWG – including ringfenced funding for specialist services led ‘by and for’ Black and minoritised women, Deaf and disabled women and LGBT+ survivors.
11. The strategy should outline clear legal obligations on government, local authorities and public bodies to provide specialist by and for community-based support services.
12. The strategy should enforce accountability through national quality standards based on the VAWG sector’s quality standards to ensure survivors of all forms of VAWG can access the specialist support services they need – including services led ‘by and for’ survivors with additional protected characteristics.
13. The strategy should give clear policy direction for the CJS in dealing with female offenders subject to VAWG and in particular those whose offences are directly related to VAWG, for example coerced drug dealing or prostitution.

Specific Recommendations/Reforms

1. Fuller use of the power in S25 Youth Justice and Criminal Evidence Act 1999, to restrict public access during the evidence of the complainant/other witnesses in serious sexual offence trials
2. Trauma informed approach in the CJS.
3. Re-fresh/re-draft guidance on ISVA role, duties and professional standing.
4. Further pilot and then roll out a Sexual Violence Complainants’ Advocates Scheme.
5. Screening the Screens in court.
6. Roll out of section 28 for intimidated witnesses.
7. An opportunity for Victims to make representations to seek a positive outcome from exercise of the Victim’s Right to Review.
8. Implementation of a firewall between CJS agencies and immigration enforcement.
9. Better training and understanding of ‘so-called’ Honour Based Abuse (HBA) within the CJS.
10. A Ministerial lead for Rape.
11. We endorse the recommendations of EVAW in their VAWG snapshot and the submission to this call from Professor Clare McGlynn and Dr Kelly Johnson of Durham University, for online harms to be treated as a public health issue and for law reform.
12. The value of ISVA and IDVA services are well understood by government and we would like to see a commitment to funding so that each and every survivor if they wish to can have access to an IDVA or ISVA.

Dear Mary

I support the need for appropriate measures to be in place to ensure swift access to support services for all those who are suddenly bereaved. To lose a loved one suddenly is devastating for family members and it is vital they have access to professionals who can offer both practical and emotional help.

Clearly my link to this issue is my role in championing victims of crime who find themselves in this position. A lack of timely support can have long term consequences for the mental and physical health of those left behind.

The charter raises many pertinent points about the existing barriers to victims accessing the support they need, including equity of access to support services, the need for robust data on unexpected deaths, and the importance of ongoing support throughout a criminal trial.

We must ensure that there is equal access to support services for any victim who needs them, and those who are vulnerable, with protected characteristics, barriers of communication or insecure immigration status.

The lack of data on victims limits the ability of support services to deliver the best care to victims of crime and to the bereaved, and the Government should address this.

For bereaved victims of crime, there can be the extra ordeal of going through the criminal justice process, having to liaise with a range of criminal justice agencies and absorb huge amounts of information to keep track of what is happening. This can be difficult for any of us and is more so for someone who is grieving and may be suffering from trauma. This is why I am calling for these victims to have access to their own advisor who can support them throughout the process.

I am also calling for legislation to require all practitioners in the justice system to undertake trauma informed training to assist them in engaging with traumatised victims and for victims to have access to free legal representation at inquests.

By launching your charter, you are raising public awareness on the need to help these families and I am pleased to support you.

Yours sincerely

Dame Vera Baird QC

Domestic Homicides: justice for victims and preventing future deaths

Dear Home Secretary, Lord Chancellor and Attorney General

As the Commissioners for Domestic Abuse and Victims in England and Wales, we write to you to call for greater recognition of the devastation caused by domestic homicide, and for a programme of work to address deficiencies across the criminal justice system and statutory services.

We have seen the effects of a culture of misogyny throughout the criminal justice system, to the detriment of women across England and Wales. This is evidenced by falling criminal justice outcomes for crimes that disproportionately affect women, particularly rape. This is clearly demonstrated in the response to domestic homicides, and so we are calling for a review into domestic homicide sentences and that all domestic homicides and suicides are subject to a domestic homicide review.

Investigations, defences and sentencing

We are very concerned that some sentences received by men who kill their female partners or ex-partners do not reflect the seriousness of domestic abuse, nor do they reflect the fact that these homicides often follow a period of prolonged abuse. The Sentencing Council’s guideline is based on the appreciation by the criminal judiciary that offences committed in a domestic context should be taken more, not less, seriously. However, this does not appear to be translating either into the quality of criminal investigations, the effort made in challenging defences or in the sentencing exercise when men are convicted.

Grounds of diminished responsibility, often claimed by defendants in domestic homicide cases, can allow perpetrators to mask the realities of these offences. What will be claimed as a loss of control due to a mental health issue appears to blunt police professional curiosity. There is abundant research to demonstrate that many apparently sudden femicides are, in fact the culmination of a hidden history of control and abuse.

Domestic abuse is a hidden crime which the police still poorly understand. There has been widespread and severe academic criticism of the approach taken in the Anthony Williams case and there was strong outrage from survivors of abuse whose experience has key parallels with those of his victim. Of course, this trial is now concluded. However, whilst the diagnosis underpinning his defence was disputed, there was limited consideration of domestic abuse, which must go beyond asking family members if they were aware of abuse.

We are concerned Mr Williams’ case might set a dangerous precedent and not only in the failure to take on the issue of potential abuse. This was the first trial for a domestic homicide that happened during the Covid-19 pandemic, when as ministers are well aware, there appears to have been a surge both in the quantity and in some cases, the gravity of domestic abuse. Mr Williams defence was that he was suffering from a mental health episode due to the stress of lockdown. That defence was successful, despite the homicide occurring just a few days into the first national lockdown. We would not want this case to set a trend for defendants to use the stresses of lockdown as a justification or a defence for killing, and this resulting in more lenient sentences. We have always been clear that poor mental health or stress does not cause domestic abuse. Perpetrators choose to abuse. Further, it is well understood by expert domestic abuse organisations that perpetrators of abuse are very manipulative, quite obviously because they have practised totally controlling the victim and excluding all routes to assistance whilst presenting themselves as good citizens to others, often for many years. It is vital the government, and the criminal justice system, remains firm on this point.

It is right that in sentencing offenders, courts consider their previous good character and likewise any relevant previous convictions they hold. However, we are concerned this often fails to reflect the realities of domestic abuse. We have been in contact with families bereaved by domestic abuse where the sentences given to their daughters’ murderers are far more lenient than compared to sentences typically given in other homicide cases. Many defendants in domestic abuse cases are seemingly of good character because the majority of domestic abuse is never reported, with only around 20% of victims reporting to the police.

Given the likelihood that there are no relevant previous convictions – and with falling criminal justice outcomes, this is even more likely – we are concerned that sentences for domestic abuse offences will fail to reflect the history of abuse.

The sentence handed down to Anthony Williams was a clear example of this; he was sentenced to just 5 years for manslaughter on the grounds of diminished responsibility, the judge finding, for no apparent reason except that his behaviour was unexpected, that his responsibility was very low.

The lack of understanding of domestic abuse which we fear has the effects set out above is also of huge concern in relation to the sentences received by women who kill their partners in self-defence, or after a long period of abuse. Their punishments can appear disproportionate. Sally Challen is a key example. She killed her husband after years of abuse, and was originally convicted of murder, but that verdict was quashed on appeal. On pleading guilty to manslaughter on the grounds of diminished responsibility, ahead of a proposed re-trial, she was sentenced to 9 years and 4 months. In her case, the mental abnormality was worsened, if not completely caused, by the violence and control which had been inflicted on her virtually throughout her entire married life. She offers a fairly clear picture of a woman whose responsibility had been systematically undermined until it was almost absent and yet there was no assessment that her responsibility was very low.

It is difficult to understand the discrepancy between this sentence and the sentence given for the killing of Ruth Williams.

One difference which could be cited concern sentencing guidelines which consider the use of a weapon to be an aggravating factor. Quite obviously, Williams had the weapons he needed in order to strangle his wife, readily available at the end of his arms, fuelled by his masculine strength. It is curious not to reflect that imbalance of strength and power in sentencing, while at the same time disproportionately punishing weaker women, who do not have the strength to resist and feel that they have to take up a weapon. We know the use of a weapon by a woman is usually because of previous abuse and the physical reality of an imbalance of strength. We would therefore question why this would be considered an aggravating factor in this situation.

We are also concerned that self-defence, which is often the reality of where a woman kills their abuser, becomes murder if the use of a weapon tips it over into the appearance of being disproportionate. This is notwithstanding an imbalance of strength and often a long-term exposure to the violent use of that extra strength. We would request serious consideration be made to extending self-defence in domestic abuse cases where victims feel they have to use weapons to cover any disproportionality in that reaction. Surely disproportionate self-defence should be as available for a victim of domestic abuse defending her body as it is for ‘An Englishman defending his castle’ which is the formula which gave rise to the legal changes following the Tony Martin case (enacted in S76 Criminal Justice and Immigration Act 2008).

We are concerned that what we have said about domestic abuse being poorly understood by police applies to judges and this ‘background of abuse’ mitigation is not given adequate weight and consequently results in higher sentences.

We are pleased the Government is now recognising men’s ‘hands’ can be a deadly weapon by criminalising non-fatal strangulation through the Domestic Abuse Bill. This of course will not impact upon sentencing in domestic homicide cases so the sentencing guidelines for manslaughter should also recognise the seriousness of strangulation by making this an aggravating factor in domestic homicides.

The Centre for Women’s Justice found that 77% of women who killed their partner or ex-partner had been subject to abuse from the person they killed. This is why it is vital that a specific statutory defence is introduced through the Domestic Abuse Bill to recognise the effect of domestic abuse on victims who offend.

Preventing future deaths

Not only must perpetrators be brought to justice swiftly and fairly, but we must learn from the tragedy of domestic homicide to prevent future deaths. Robust Domestic Homicide Reviews (DHRs) are a key part of this, and we were concerned to hear the Home Office had agreed that a DHR was not necessary after Ruth Williams’ death. Our view is that every domestic homicide should be subject to a review, to bring together partners locally and understand what went wrong. The idea that a review was not necessary because a similar review had already been done not only misunderstands the need for them (clearly, lessons had not been sufficiently learnt) but fails to recognise the specific experience of Ruth and her family.

Therefore, we continue to call for a strong national oversight mechanism for domestic homicides, which would sit within the Domestic Abuse Commissioner’s Office, independently of Government. This is crucial to ensure that the right questions are asked following a domestic homicide or suicide, and that recommendations are implemented effectively and embedded locally to prevent future deaths. We therefore welcome the amendments laid by the Government to support this endeavour, but it must go further. DHRs alone do not give the full picture, and we are calling for all relevant reports to be shared with the Domestic Abuse Commissioner and her office, including Coroner’s reports, Serious Case Reviews and other relevant reports and reviews conducted by a range of statutory agencies.

In summary, we remain concerned about the response to domestic homicides, and call for the Government to conduct a review into domestic homicides and introduce an oversight mechanism through the Domestic Abuse Commissioner’s office. The review should include all of the factors we have referred to here and there may well be others which experts in the field would wish also to be considered. We would specifically like to see a comparison between sentences for domestic homicides compared to non-domestic homicides (both murder and manslaughter convictions), which should be disaggregated by gender and other protected characteristics.

We would welcome a meeting with Ministers and officials to discuss this, so we can all work together to better bring perpetrators to justice and protect victims.

Yours Sincerely

Nicole Jacobs, Domestic Abuse Commissioner for England and Wales and Dame Vera Baird QC, Victims Commissioner for England and Wales

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Overview

Victim participation is essential to the delivery of criminal justice. In this paper, we make the case for improving the treatment of victims in a practical and meaningful way, giving them confidence in the system and to help them to cope and recover from the impact of crime.

This report highlights the decline in victim confidence in the criminal justice system, with increasing numbers of victims withdrawing their support for prosecution, with others saying they would be unwilling to testify in court again or express increasing dissatisfaction with their treatment by criminal justice practitioners.

Contained in the document’s 34 recommendations are calls for the government to put victims’ rights on a proper statutory footing, with monitoring and compliance mechanisms to hold agencies to account; to lay out in law the role and rights of victims as participants in the criminal justice system; and to establish a single unified victims’ complaints system.

The report is divided into three key themes:

• Victim Participation in the justice system
• Monitoring compliance with victim entitlements
• Ensuring equality of access to justice for all victims

The Victims’ Commissioner for England and Wales, Dame Vera Baird says:

“I look forward to a future where victims’ rights are no longer viewed as an optional extra, but a key part of how we deliver overall justice. The Victims’ Law has the chance to be a once in a generation, landmark piece of legislation, which could truly transform the victim’s experience of the justice system. To achieve this, the government must have the ambition and determination to make it truly transformative. Acknowledging the true position of victims as active and valued participants in the criminal justice process is key if we are to reverse falling victim confidence in our justice system.”

Read the News Story.

Dear Vera

Thank you for your letter of 9 November to the Minister of State for Crime and Policing regarding police recording of hate crimes. I am replying as Minister of State in the Home Office. I am sorry for the delay in responding to your letter.

Firstly, I want to take this opportunity to assure you that this Government takes all forms of hate crime very seriously, and these abhorrent acts will not be tolerated in our society. We recognise that hate crimes have a deep impact on victims because they are targeted against some intrinsic part of the victim’s identity. As you know, the effect of these crimes is often felt not only by the victim, but also family, friends, neighbours and others in their community. Through fear, abuse and violence, hate crime can limit people’s equality of opportunity and infringe their basic human rights.

I am unable to comment on Stop Hate UK’s claims in relation to the under-recording of hate crime in anti-social behaviour incidents. There may be a number of reasons why the police may not record an incident as a hate crime, including a lack of sufficient evidence. Moreover, not every reported incident will be a crime. Where it is established that a criminal offence has not taken place, but the victim or any other person perceives that the incident was motivated wholly or partially by hostility, it may instead be recorded and flagged as a non-crime hate incident. More information on this recording can be found here: https://www.app.college.police.uk/app-content/major-investigation-and-publicprotection/hate-crime/responding-to-non-crime-hate-incidents/.

In 2019/2020, there were 105,090 hate crime offences recorded by the police in England and Wales, an increase of 8% compared with 2018/2019 (103,379 offences). Like other categories of police recorded crime, this increase is thought to be largely driven by improvements in police recording practices. There is also a growing awareness of hate crime that has likely attributed to an improved identification of such offences. The independent Crime Survey for England and Wales shows hate crime has fallen by 38% over the last decade and it is encouraging that there has been a downward trend in incidence.

Nonetheless, we recognise that more can be done. This is why the hate crime action plan (Action Against Hate: The UK Government’s plan for tackling hate crime), published in 2016 and refreshed in October 2018, included policies on improving the reporting and recording of hate crime. In particular, we required police forces to disaggregate hate crime data by faith for the first time and ran a national public campaign to make clear that hate crime is unacceptable and raise awareness about reporting it.

My officials routinely work with Stop Hate UK. We will also engage with them further to understand more about the data they hold in relation to this issue.

Finally, I have relayed your feedback to the Home Office Hate Crime team who are currently working closely with the National Police Chiefs’ Council and civil society partners to ensure police forces are reassuring affected communities and encouraging reporting of hate crime.

I hope you find this reply helpful in setting out the Government’s position in relation to the issues you raised.

Baroness Williams of Trafford

Statutory consultation on the 2021-22 draft business plan

Thank you for your letter of 5 January asking for my comments on your draft business plan for 2021-22. Having read your proposals, particularly those specifically relating to victims and witnesses, I very much welcome your commitment to undertake an inspection looking at the level of service the CPS provides to victims and witnesses throughout the court process. This is important given the mounting evidence that victims are becoming increasingly disillusioned with the criminal justice process, as evidenced by the threefold increase in the proportion of prosecutions that are not pursued following a decision by the victim to withdraw their support.

In the past year my team has undertaken two on-line victim surveys and received nearly 1,000 responses. We received a lot of feedback relating to the CPS and we would be very willing to discuss these findings with your inspectors as part of this inspection. More specifically, I particularly welcome any plans you might have to look at CPS compliance in speaking to witnesses at court and that it is envisaged the inspection would include interviews with witnesses. Anecdotal evidence suggests the quality of the interaction is variable and this qualitative feedback can only be picked up by engaging with witnesses.

You might consider whether you extend this inspection to look at how the CPS communicates with victims prior to the trial, for example, explaining decisions in respect of charging or whether to accept a plea bargain. An exchange of correspondence between me and the CPS suggests that all too often the communication of sensitive and quite technical decisions in respect of plea bargains are being delegated to police officers, who may not be best placed to provide accurate and informed advice.

I also welcome the proposal to undertake an inspection on domestic abuse and the domestic abuse best practice framework, looking at the quality of CPS decision making in domestic abuse casework. You suggest this could include looking at the support given to victims and I would hope this would be a critical part of methodology for this inspection. In framing the remit for this piece of work, I would strongly urge you to consult with the Domestic Abuse Commissioner, Nicole Jacobs.

I would particularly wish to see an inspection of all aspects of the Victims’ Right to Review, including decision making methodology, the communication with victims, the consideration of victim representation (where this is a feature) and the approach to the ratio in R(FNM) v DPP (2020) EWHC 870. I would very much welcome your thoughts on this proposal.

Furthermore, and in light of the ICO report published last summer, I think the time must be right for an inspection into the role of the CPS in digital download and the obtaining of third party material, in particular if and how the procedures set out in Stafford is being observed by CPS and how else the CPS approach the question of ensuring relevant and appropriate approach to this material. I will await the consultation in respect of plans for joint inspections.

In line with my usual practice, I will be placing a copy of this letter on my website.

Yours sincerely

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

cc: Mrs Stollery