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Dear Home Secretary

We write to you as Commissioners to share joint concerns on the progress of the HMICFRS Honour Based Abuse (HBA) inspection recommendations from December 2015.

This is particularly pertinent given the Home Office’s publication on the number of HBA-flagged incidences by the police this week.

We were heartened to see this report in 2015 and were hopeful that there would be further inspections, however we note that to date little progress has been made on the recommendations arising from this report.

These concerns were flagged in a letter from the national charity Karma Nirvana in May 2019 and remain outstanding as a growing concern. A response to this letter from the Home Office indicated that Ministers were not convinced that a follow up inspection was necessary “at this point” but that the Home Office would review the position in a year’s time.

As a year has now passed since the Home Office agreed to review the position on the “need for HMICFRS to hold a follow up inspection”, we write to implore the Home Office to support the commission of a follow up inspection.

The preliminary inspection in 2015 arose as a consequence of joint sector concerns that victims and survivors of HBA, at that time, were being failed by police. The majority of the inspection findings concurred with this position. The inspection provided valuable insights into the extensive work required to bridge the disparity in police service that victims of HBA receive, compared to other issues with stronger leadership and accountability.

It demonstrated that many forces felt “constrained in their response to HBV by deficits in national leadership, guidance and policy”.

We commend the preliminary inspection into HBA for its honest and frank representation of a deeply concerning picture of how policing HBA across England and Wales is both inconsistent and overwhelmingly a postcode lottery.

It is estimated that since the last inspection a further 75 victims have been murdered in the name of ‘so-called’ honour in the UK. In the context of the COVID-19 pandemic, the national HBA helpline has experienced increased call volumes by up to 264%. This is against a backdrop of declining HBA related prosecutions, which has fallen by 43% since 2014/2015 according to a CPS annual VAWG report.

The call for a second follow up inspection is essential to curtailing the regression of policing in HBA. The failure to follow up on the inspection recommendations not only undermines victim confidence to engage with police, but fundamentally exacerbates the hidden nature of HBA, thus intensifies victims’ risk and compromises victim safety.

Yours sincerely

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

Contact us if you need this publication in another format.

Overview

Read the News Story.

WATCH: Dame Vera in conversation with Jane Gordon, co-author.

This report compares best practice in the treatment of victims across five countries and finds England and Wales lag behind in providing substantive victim participatory rights. The report argues that it is time to acknowledge the special position of victims of crime in the criminal justice system and designate them ‘participants’, so that their rights and interests are recognised by criminal justice agencies.

The report analyses the development of international and regional standards on the rights of victims of crime and provides an international comparative review of different legislative models for the protection of victims’ rights across 5 adversarial jurisdictions: England & Wales, Australia, Canada, New Zealand and the United States.

Australia, Canada, New Zealand and the United States were selected for comparison with England & Wales because each of their adversarial justice systems is grounded on the English common law and each country has either fairly recently reformed its criminal justice system to strengthen (to varying degrees) the rights of victims of crime, or has completed consultations, inquiries or reviews to inform intended criminal justice reforms. Each, therefore, has relevant lessons and examples of good practice for England & Wales.

Through this analysis, it identifies effective legislative and policy measures that promote the role of victims within the criminal trial process whilst not undermining the status of the adversarial justice system. These are set out under the following headings:

1. Legal recognition of victims as participants in the criminal justice process.
2. Enhancing procedural justice for victims of crime: giving victims a voice.
3. Independent legal representation for victims in applications for disclosure of confidential information.
4. Strengthening enforcement of victims’ rights.
5. Accountability for victims’ rights: independent oversight to monitor compliance.

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

“If we are to successfully tackle falling confidence in the criminal justice system, we only need to look to some of our international peers. The criminal justice system cannot function without victims, yet victims in England & Wales continue to feel marginalised and peripheral to the criminal trial process. We need to see victims as valued participants and support them accordingly.

Acknowledging the true position of victims as participants in the criminal justice process would prompt a long-overdue cultural change across the criminal justice system, where victims’ rights are not viewed as an optional extra, but a key part of how we deliver overall justice.

Victims’ rights are not a challenge to the defence, nor should they be a challenge to deliver. They include help to understand the process, updates on their case, respectful treatment, procedural justice and support as and when it is needed – and a voice when it matters.

I thank Sisters for Change for this immensely stimulating work, which will influence the design of outcomes for victims for many years ahead.”

See the Victims’ Commissioner’s statement.

See the Law Commission consultation.

Reform of the communications offences

I am pleased that The Law Commission is re-visiting existing communications offences and considering further offences to deal with the horrible phenomena of cyber-flashing and pile on harassment.

As Victims’ Commissioner I am deeply concerned about the use of electronic media and social media to commit harassment, make threats to kill or rape and other ‘offences’.

As you note in your consultation document, often (although not exclusively) these types of offences are committed against women and I know that the Government has expressed an interest in new and emerging forms of violence against women and girls (VAWG) in its’ call for evidence about VAWG to inform a new VAWG strategy.

The ‘VAWG’ sector would say that these are not as much new and emerging as the same types of offences just being facilitated by new mediums. I am inclined to agree.  It is therefore vital that the Law Commission consult widely with the specialist VAWG sector and VAWG academics on the creation of any new offences to ensure that they adequately ‘cover’ the behaviour concerned and do not have inadvertent unintended consequences.

Creating a new offence of so called ‘cyber-flashing’

I agree there should be a new offence of cyber-flashing, but it is vital we get the law right first time. Laws on up-skirting and image-based sexual abuse (‘revenge porn’), for example, are partial and do not cover all abuses. We need a law on cyber-flashing that covers all non-consensual sending of penis images.

As proposed, the offence is problematic for a number of reasons.

The offence as proposed is limited to where the offender sends pictures of his own penis. This is an issue both evidentially and because it misunderstands the harm this offence causes.

Evidentially, I can foresee significant issues in proving the image received was in fact an image of the perpetrator’s own genitals. It seems likely the majority of offenders will claim the image is not of their penis and how exactly will the prosecution be able to prove otherwise? To do so would involve measures that are deemed intrusive and therefore, it is  unlikely to be attempted,  resulting in very few if any prosecutions.

Harm is not dependant on knowledge that the genitals ‘belong’ to the person sending the message. For example, receiving a penis image could be perceived as a threat of imminent sexual violence. This threat will cause harm regardless of whose penis is in the image, akin to how someone receiving an image of a knife may fear physical violence regardless of whether they know that the sender actually owns the knife in the image.  In other words,  the harm doesn’t come from knowing that the sender has sent an image of his own genitals. It is from receiving any unsolicited image of a penis.

Linked to this is a misunderstanding of the motives of offenders whom, it would seem, the Law Commission have addressed as being motivated in a similar way to physical flashers. This however does not capture the full range of motivations for this type of offending, which can include humiliation and shame, and which again could be achieved regardless of whose penis appears in the image (see Oswald, F et al (2020) ‘I’ll Show You Mine so You’ll Show Me Yours: Motivations and Personality Variables in  Photographic Exhibitionism’, The Journal of Sex Research, 57(5): 597-609. & Henry, N, McGlynn, C, Flynn, A, Johnson, K, et al (2020) Image-Based Sexual Abuse: A Study on the Causes and Consequences of Non-Consensual Nude or Sexual Imagery (Routledge)).

It also would create a hierarchy of offences whereby those who receive an unsolicited penis image where the picture is of the offender’s genitals will be able to seek justice, and those who receive one that isn’t wont, despite there being no evidence the harms are more severe in the former ‘.

I would recommend, in line with the submission from Prof. Clare McGlynn, that any new offence contains the following elements:

1. A new sexual offence which covers any genital image not just those of the perpetrator’s genitals.
2. If motivation is to form an element of the offence, then this should include ‘awareness of the possibility of alarm and distress’ and be extended to at least include humiliation. However, I agree that an offence based on non-consent rather than the perpetrator’s motives would be more appropriate as it is the basis of most other sexual offences and would also seek to challenge the normalisation of such behaviour. Motive based offences risk (and do) create hierarchies of offences.

Creating a new offence of pile-on harassment

In principle, I agree with the idea in the proposals of creating new offences to capture this insidious behaviour, although I share concerns about the practical workability of a participation offence.  Instead, incitement or encouraging offences seem more ‘practical’.

What I can say as Victim’s Commissioner is that the harm of this type of offending is clear. In particular, it is a feature of almost daily life for women in the public eye and as such, it must be addressed. If this sort of behaviour was occurring in an analogue way, for example if hundreds of people walked past a woman’s house shouting rape threats at her every day, action would be taken. With our lives increasingly ‘lived’ online, this type of abuse can have a silencing effect.

Although outside the scope of this consultation, this is linked to the Government’s online harms white paper and proposed Bill. What is needed are greater measures to prevent this happening, increased responsibility and penalties for platforms who fail to mitigate this type of behaviour and address it where it occurs.

It strikes me that criminalising this behaviour would also play an important role in sending a message of the unacceptability of this type of behaviour.

New offence to replace s.1 of the MCA 1988 and s.127 (1) of the CA 2003

I am in favour of creating a new offence here and agree that likely to cause harm rather than actually causing harm is the right test, not least because related to the above, many women in the public eye receive such regular threats on social media that they cease to have the desired impact on that woman. However, there is a very real societal harm here and women ‘witnessing’ this can also experience harm, as it forms part of the very gendered ‘micro’ aggressions women endure every day, which can lead to a sense of feeling unsafe whilst moving through the world .

Finally, I note you are also considering reform around Image -based abuse more broadly and I hope that this will lead to a consolidation of all the ‘digital’ sexual offences that are currently poorly dealt with in law, such as so called up-skirting, so called revenge porn, cyber-flashing, deepfakes, sharing recordings of sexual assaults and threats to share images etc. These are all undoubtedly linked and require a joined-up approach.

I am very happy to offer any assistance in this matter in my capacity as Victims’ Commissioner and keen to see these high harm behaviours addressed.

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

Yours sincerely

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

See the HMCTS consultation documents (now closed).

Submitted to the Ministry of Justice on 9 December 2020.

Consultation: COVID operating hours

Dear Secretary of State,

After reviewing the consultation documents, I would like to set out my observations concerns with the COVID Operating Hours Proposal.

At the outset, it should be noted that the consultation documents (COVID Operating Hours Crown Court Pilot Assessment, Final Report: User experience and Insight on GOV.UK) show only a small amount of data has been gathered on the impact on victims or witnesses.

My main concerns about the proposal are about:

• which victims and witnesses will be asked to give evidence within this shift system;
• who will asked to attend court early;
• the issue of returning to complete testimony due to the rigidity of the COH proposal;
• the assessment there is “potential for indirect sex discrimination” and the impacts on people with caring responsibilities (see the Public sector equality duty); and
• the lack of consideration about the potential for victim attrition.

Overview

I do not consider it realistic to assume that a judge would be able to assess at PTPH whether COH could disadvantage a particular victim or witness. Witness Care Units are already cracking under significant strain even without the need to ascertain what might be subtle and personal information. The information would need to be ascertained in some detail then forwarded to the police in the case, then to the CPS, who would put this to a barrister who would mention it to a judge. You only have to consider the gaps this information could fall through to understand how many victims and witnesses could be disadvantaged.

I would not feel satisfied unless there was a clear and accepted unfailing process by which HMCTS and other agencies would conduct assessments of whether the hours could disadvantage a victim or witness. If one is in process of development, it should be shared with victims support services for their input and evaluation. It seems to me unlikely that such a system could be designed and be an effective protection at the distance from the victim from which it will operate with the level of information required for appropriate decision making.

The next issue is whether potential disadvantage to a victim/witness would, in any case, be treated as good reason why a case should not be subjected to the two-shift system. There is a considerable backlog of cases and courts which could otherwise be put to more flexible use appear, on some of the evidence, to be hamstrung by their designation for rigid COH. Presumably, they need to be filled with cases and what guarantee could there be that pressures would not outweigh the impact on a victim when that impact is being related third hand from a distance.

Hard Stops

COH courts operate with ‘hard stops’ at the end of an AM or PM session (meaning they are not supposed to overrun). The consultation document states that this hard stop “created some inefficiency as sessions would finish early if they thought a witness would go past the stop time compared to standard hours courtrooms where they could overrun”. This suggests some witnesses may be in court to give evidence, the court will finish early, and the witness is called back for a second day to give evidence due to the ‘hard stop’ rule (see page 15).

These points are not addressed in any more detail in the documents, nor are these impacts fully considered, e.g. whether it would be preferable to give the witness the choice of over-running (particularly for a short time) or returning the next day.

For a complainant giving evidence in a high harm case, it could be punitive to be required to testify across two, or more, separate half days. Often courts sit for longer to finish a witness’s evidence so that they do not have to return a second time. Hard stops make this impossible. Courts must finish so the next shift can come in.

This may mean that a complainant, a child victim of sexual abuse or someone who has been trafficked, might give half of their evidence on one day and be required to wait, often in anticipation of stressful cross-examination overnight until the same time on the next day.

It will affect women most since they are, overwhelmingly, the most frequent complainants in high harm cases and could possibly amount to a level of indirect sex discrimination. Government proposals in the victim care sector are to improve the criminal justice experience in order to help victims to cope and recover and not to make it worse

Also, the consultation documents do not include an assessment about how many victims would not attend court if they are told to do so early or stay late and cannot manage it.

Witness support

In the learning lessons section of the consultation document, it states “We would continue to collaborate with MoJ and Witness Service on the support that they can give to early morning and late afternoon sessions. Where they were unable to facilitate, we would mitigate by use of HMCTS resources” (p.23).

It’s unclear whether these ‘HMCTS resources’ would adequately replace the support offered Witness Service, whether sufficient resourcing is in place to take on this responsibility and what any additional training is being given to HMCTS staff who take on these additional duties.

Vulnerable witnesses and trials with a large number of witnesses

With the COH model, the consultation document states that “A trial with a vulnerable witness (where s28 has not been utilised) is unlikely to be suitable for a shift court”. And, the same page states “A trial with a large number of witnesses is unlikely to be suitable for a shift court” (see page 22). Both of these need more clarity about under what (exceptional) circumstances these would be suitable and how these are deemed suitable.

More complex cases

The assessment report gives an example of one court involved in the pilot: “Due to the case profile at one site (where the majority were sex cases) it was harder to find appropriate cases that fitted with the COH court. The resident judge, therefore, used the COH courts for short work or other court business when needed” (p.11).

In any follow-up evaluation, I would like to see what the impacts of the case requirements for COH courts, i.e. shorter/less complex, have on listing other cases within the court. As the Public Sector Equality Duty statement sets out: “A potential issue is whether there could be equality impacts resulting from displacement effects – that is, unintended effects caused by the displacement of cases which might otherwise be heard, if the AM and PM trials hadn’t been running” (p.2).

As I have stated above, I would be particularly concerned if displaced cases unintentionally led to longer waiting times for vulnerable or intimidated victims and witnesses, many of whom will have protected characteristics.

Legal professionals meeting with witnesses before trial

The assessment report sets out that “Respondents [Legal professionals] who had attended COH sessions were more likely to […] not having sufficient time to meet witnesses and other parties” (p.15). In the consultation document, there are no mitigating actions proposed to address this.

Evidence on the impact on witnesses

The assessment report states that “During the pilots, it was not possible to collect detailed data on the impact of the approach on those with caring responsibilities and the impact on specific groups (including citizens and witnesses)” (p.18). (the absence of this information adds weight to my concerns that future assessments of suitability for COH will be very difficult for the judiciary – see above)

The assessment included interviews with 5 witnesses (4 of these were written responses) over the seven pilot sites – one of these was in Liverpool, four were in Portsmouth. These interviewees had all attended court, but we also need to hear from those who didn’t or couldn’t – perhaps because of difficulties with travel, childcare, particular fears or so forth. Equalities impacts can only really be assessed by understanding the effect on those who don’t make it to court, as well as those who do.

Further Assessment

I would recommend that in any further assessment and monitoring, a more considered and thorough approach is taken to assess the impact on victims and witnesses. This should include, but not be limited to, witnesses’ access to support, the impact of delays and overruns, number of witnesses in COH courts, types of cases in COH courts, vulnerable witnesses and provision of special measures, and victims and witnesses who did not attend court.

We also need to consider how to minimise the risk of further harm caused by allotting inappropriate and vulnerable victims to COH courts. This will require an assessment of the probability of a position of indirect discrimination occurring since women will be more likely to be in this position than men.

in line with my usual practice, a copy of my response will be placed on my website.

Yours sincerely

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

cc: HMCTScovidoperatinghours@justice.gov.uk

Dear Kit

My office has been in discussion with the charity Stop Hate UK about their concerns over police recording of hate crimes. I am writing to share these concerns with you and ask that you consider what steps might be taken to ensure this crime is being accurately recorded.

The charity estimates that 70% of hate crime reports arises from incidents with neighbours and the local community. It often occurs as part of a wider pattern of antisocial behaviour. The charity tells us that in response to this behaviour, the police invariably look for a community resolution. They appear not to recognise that an individual or groups of individuals are being targeted as a result of their protected characteristics.

In practice, this has three serious ramifications. Firstly, it means the hate crime angle is diminished, with the focus being solely placed on the anti-social behaviour. As a result, there is a failure to recognise the impact on the individual of being targeted in this way and a failure to appreciate the cumulative impact when there have been a series of incidents. It also exacerbates the hurt felt by the individual as it appears that the criminal justice system does not recognise the wrong being to them.

I share the view of the charity that this is in part a failure of individual police officers to fully recognise and understand hate crime and its impact. Furthermore, officers are not always asking the right questions when investigating incidents, which might result in identifying anti-social behaviour as being driven by hate.

The second ramification of this failure is that victims of hate crime are not being signposted to the specialist support that need to help them to cope and recover from their experience of crime. This means that victims are reluctant to report hate crime experiences as they believe nothing will be done to support them.

The third ramification is that police fail to record these incidents as hate crime. This means that hate crime is being routinely under-recorded which in turn leads to criminal justice agencies under-estimating its prevalence and impact on specific communities. This must inevitably impact upon the level of priority attached to tackling the crime and the level of resource allocated to it.

I am not sure the extent to which the police aware of this and if so, what are they plan to do about it, hence why I am copying this letter to Deputy Chief Constable Mark Harrison who is the NPCC lead on hate crime, as well as Sir Tom Winsor at HMICFRS.

Judging by the Op Talla reports, it is not clear whether there is a hate crime flag on the PNC (as there is for say domestic abuse). If this is the case, it appears to be an omission that needs to be rectified. Across all offences, there is a statutory aggravating factor which is:

“Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation, or transgender identity.”

There seem to be parallels with domestic abuse here (the recognition that this type of hostility aggravates any incidence, as domestic abuse does). This suggests that if domestic abuse can be recorded the PNC, then so can hate crime.

In addition, there might also be training issues for the police so that we can be sure they are recognising hate crime and the impact it has upon the victim.

I would welcome your views on this issue of serious concern and how the Home Office, working with the NPCC, plans to resolve it.

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

Yours sincerely

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

CC: Sir Tom Winsor and DCC Mark Harrison

Submitted to the Ministry of Justice on 3 December 2020

The root and branch review of the parole system: Public consultation on making some parole hearings open to victims of crime and the wider public

I am responding to your consultation on whether parole hearings should be opened up to victims of crime and the wider public.

I am a strong advocate of open justice and am of the view that victims should be viewed as participants of the justice system, which includes being given greater access to information. Therefore, my starting point in the discussion about opening up the parole process is to welcome this initiative as an opportunity to provide further transparency in parole decision-making.

Nevertheless, and as your consultation sets out so clearly, there are some complex considerations at play. After careful reflection, my support is tempered by the need to protect victims and other third parties. It is also important we do not take any step that might inadvertently inhibit offenders and professional witnesses from being candid in response to questions from Parole Board panel members; as this may undermine their ability to make an accurate assessment of the offender’s future risk of serious harm.

I sense there is much greater scope for transparency than simply opening the parole hearing to the public. I am therefore calling for this review to also look at other opportunities for greater openness which achieve your aim of open justice as well as making victims better informed. For example, I would like to see more information being shared with victims throughout the duration of the offender’s sentence, more victims being persuaded to participate in the Victim Contact Scheme (VCS) and a review of the Parole Board’s high level summaries of parole decisions to see whether there is scope to share more information with those victims who do not wish to attend the hearing.

Current Victim Engagement with the Parole Process

As your consultation document sets out, great strides have been made in opening up the parole process from what was a closed system, shrouded in secrecy, to the point where victims can: submit a Victim Personal Statement; present the statement in person at oral hearing; receive a high level summary of the parole decision; and apply for parole decisions to be re-considered. There is better engagement with victims on what to request in respect of licence conditions. All of this is positive and the increasing levels of victim engagement in the parole process re-enforces my wider message that victims wish to be treated as participants within the criminal justice process and not simply as by-standers.

I am particularly impressed by the efforts taken by the Board and HMPPS to facilitate victims reading their VPS during lockdown, by making maximum use of video-links. This must be the way forward.

Importantly, the Parole Board has been open to new ideas for engaging with victims and has constantly reviewed its practices to see how they can facilitate better engagement.

This leads me to conclude the Parole Board and MoJ have achieved a great deal in opening up the parole process to victims, but there is still much more we can do.

Open Parole Hearings 

I believe open parole hearings would go a long way in informing victims and the wider public of how the parole process operates and how the Parole Board is required to reach its decisions. I agree with your consultation paper that parole decisions can generate a huge amount of controversy, in large part due to poor information on how decisions are made.

As evidenced by the take up rate of victims in the Victim Contact Scheme opting to receive high level decision summaries, there is a thirst for more knowledge on how decisions are taken. Victims would be better placed to understand a release decision if they had access to more information and could see first-hand the painstaking care taken by parole members in weighing up all the evidence.

The default should always be for open justice, unless there are strong reasons to the contrary.

The Board’s overriding priority is the safety of the public. Its’ decisions are based solely on a forensic assessment of future risk of serious harm to the public. Keeping the public safe and avoiding the creation of more victims is absolutely paramount. In making these decisions, Parole Board members have to ask very personal questions to the offender in relation to their former life, their motivation for the offence, their mental and physical health and their treatment and progress in custody. This questioning will often be difficult for the offender and invariably, it will be painful and traumatising for victims too.

Within the hearing, professional report writers must feel able to speak openly when offering their professional advice to the Board, even if this advice may not be well received by other parties.  It is important an open hearing does not inhibit either the questions being asked or the offender and report writers from responding in full. If witnesses do feel constrained when answering questions, this might in turn undermine the quality of the Board’s risk assessment.

The other issue of concern is that hearings are not confined to examining data relating to the offender but will include information relating to the victims and other third parties. I am particularly concerned that the disclosure of personal data relating to victims and their families may cause them distress. They have already experienced the trauma of testifying at trial as well as having their lives scrutinised in open court during the course of cross examination of other witnesses. It would be completely unacceptable for this trauma to be repeated during an open parole hearing. We must also remember that most offenders usually attend multiple parole hearings before being released and this means victims having to re-live the experience time and time again. This could have a devastating impact on them, many of whom would have strived for some form of closure in the intervening years. Indeed, I suspect some victims would be distressed even at the mere possibility their offender’s parole hearing might be held in public.

Even if the victims’ private data was not disclosed at the hearing, hearing the offender give their evidence might be traumatising. Whilst the decision whether to request permission to attend the hearing must ultimately rest with the victim, consideration would have to be given to providing professional support in respect of any hearing where the victims was present.

For this reason, I would urge caution in opening up hearings, despite my default position in favour of open justice. I believe it would be unwise and premature to make these hearings open to press and wider public at this stage. Such a move would inevitably result in hearings being reported in detail in the press, which in turn could greatly add to the distress of victims.

Instead, I would prefer to see any scope for open hearings being restricted to the victims of the crime, and only where the victim makes an application to attend in person. I also feel the Parole Board should have the discretion to determine whether access to the hearing be in full or subject to some restriction.

The consultation makes reference to practical considerations if there were to be open hearings within the confines of prisons. This is particularly the case where there are multiple victims and extended families involved. I would have thought it would be more comfortable for victims to observe the hearings remotely, possibly in victim hubs, where support was readily available if required.

Re-engaging Victims

Access to the parole process is dependent upon victims opting into the Victim Contact Scheme. Many do not, for a variety of reasons, and therefore are unable to participate in the process or have their voice heard. The Parole Board tells me as few as 30% of parole hearings include a victim personal statement. I accept there will be victims who do not wish to make a statement. However, I suspect there are many victims of historical crimes who did not feel able to engage with the Victim Contact Scheme or understand fully what it was about. They are simply unaware the offender is being considered for parole.

Too often we hear reports of victims being shocked to find out through a third party or, even worse by bumping into the offender in their local high street, that they have been released from prison.

I have taken this up with the Probation Service. The Probation Reform Programme extends to the operation of the Victim Contact Scheme. I have called on them to consider how they might proactively re-engage with historic victims outside of the scheme in time for the commencement of the parole process. I am pleased they have been receptive to my concerns. I understand there is a proposal to set up a dedicated team to trace victims of legacy cases so they can input into the parole process. I support this and it is important the team is set up to coincide with any changes to make the parole process more transparent. Greater transparency will be of limited impact or value if thousands of eligible victims remain outside of the Victim Contact Scheme.

Tracing victims after years without contact is only part of the solution. We also need to consider how the initial offer is made to victims to join the scheme.  There have been some useful pilots which have shown that having the scheme properly explained to victims significantly improves the opt in rate. The learning from these pilots needs to be rolled out across all parts of the country.

High Level Summaries

The government’s desire to open up the parole process must include a review of the information given to victims in high level summaries.

In 2018, the government scrapped the privacy requirement in the Parole Board Rules, enabling victims to be informed in summary form, of the reasons behind their decisions. Over 2,500 victims in the Victim Contact Scheme have opted to be sent high level summaries. This level of engagement is a clear example of victims wanting to be better informed and become active participants in the criminal justice process.

Last year, the re-consideration mechanism was introduced.  This offered an opportunity for both offenders and victims to challenge the Parole Board. Challenge is a good thing. It requires decision-makers to reflect. Ultimately, it brings better practice and better decisions.

I have already flagged up to the Board that I am looking for reassurance that the summaries are providing sufficient information to enable the victim to understand how the decision was reached. It also needs to be sufficiently detailed to facilitate victims considering whether to make a request for re-consideration.

This consultation has re-enforced the need to evaluate the effectiveness of these summaries and whether there is scope to share more information. Plans to allow victims to attend parole hearings opens the way for victims to hear in much greater detail the evidence being placed before the Parole Board. It would be incongruous for this level of detail to be made available to the victim at the hearing but not referred to in the subsequent written high-level summaries.

Expanding the high-level summaries would make the parole process far more open and transparent regardless of whether the victim opts to attend the hearing, which accords with the government’s over-arching objective.

Greater transparency

Opening up parole hearings will not by itself make the parole process more transparent. It needs to be seen as part of a much bigger piece of reform covering the whole of the victim journey from trial to release.

Every year, victims in the Contact Scheme receive an annual contact letter and, routinely, it will advise them that there have been no significant developments to report. This sends a signal to the victim that the offender presents the same risk as the day he was convicted.  It makes no reference to offending behaviour work, signs of maturation or remorse or any other indicator of progress.

Eventually, when the offender is eligible to apply for parole, the victim is invited to become more engaged in the process. They will know very little if anything about the offender journey since the trial. They will not understand the context in which the parole review is taking place. It is therefore not surprising so many victims are shocked and upset to find out the offender is considered to be sufficiently low risk to be transferred to open conditions or even released.

I have challenged HMPPS on this. For example, I could not understand why these victims were not being not told when the offender was re-categorised. How can the fact that an offender has been moved from Cat A to Cat B prison not be considered a “significant development”?

I am pleased to say this has been reviewed and in future, victims will be told of re-categorisation. This is a small but important step forward, but we need to go further.

As part of its drive for transparency, I would ask the government to consider how we can convey to victims information on a range of indicators of progress or regression, for example, better custodial behaviour, signs of remorse, or active engagement on offending behaviour programmes throughout the offender’s sentence.

If we want victims to have a better understanding of parole decisions, the sharing of information needs to start from the outset of the sentence and not at the very end. In other words, you cannot have greater transparency for parole if everything that goes before it is shrouded in secrecy.

In line with my usual practice, a copy of this submission will be placed on my website.

Contact us if you need this publication in another format.

Overview

This report considers the current powers and duties of the Victims’ Commissioner and compares them to those of selected public scrutiny bodies in England and Wales.

This report identifies significant gaps in the powers of the Victims’ Commissioner in relation to the current Victims’ Code. It identifies changes that could be made to close these gaps and to enable the Commissioner to better fulfil her statutory duties.

The Victims’ Commissioner has three core statutory duties: to promote the interests of victims and witnesses; to take such steps as considered appropriate to encourage good practice; and to keep under the review the operation of the Code. This report recommends that, in order to fully perform these connected duties, the Commissioner needs additional powers to:

1. Undertake effective review of the operation of the Code;
2. Rely on the cooperation of bodies named in the Code when encouraging them to adopt good practice;
3. Identify weakness in the implementation of the Code;
4. Require action if bodies are found not to be complying with the Code;
5. In the last resort and if necessary to clarify the law in the public interest, to bring appropriate legal proceedings;
6. Receive and direct complaints from victims as users of services provided by bodies named in the Code;
7. Conduct and commission research and training on, for example, what constitutes good practice and on victims’ emergent needs;
8. Require changes to the Code if it is found to be inadequate;
9. Ensure that Parliament is fully aware of victims’ needs, and upholds their entitlements and rights;
10. Recommend changes to the law.

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

“This report poses two key questions: if victims’ rights are important, why is it that they cannot be enforced? If agencies have duties, why is it that they cannot be compelled to perform these duties?

The history of victims’ codes is that everyone approves of them, but the rights are only ever patchily delivered. If we are to improve justice for victims, as we urgently need to do, simply ensuring they are guaranteed the rights that have been set out in the Victims’ Code will be a foundational first step.

I commissioned this research to have a fresh look at what minimum powers would be needed for the Victims’ Commissioner properly to review the operation of the Victims’ Code and to drive improvement in the interests of victims. I plan to give these recommendations very careful consideration.

The Victims’ Law offers a chance to tackle the dilemma that victims’ rights aren’t working, aren’t enforceable and are rights only as long as the agencies responsible want victims to have them. This report can play a key part in shaping how we make the best of that opportunity.”

Professor Pamela Cox said:

“If we uphold victims’ rights, we strengthen the criminal justice system as a whole in the wider public interest.

As the role is currently configured, the Victims’ Commissioner is established as an advocate for victims but not as an effective monitoring and scrutinising role. The Commissioner has very few tools with which to work. At present, the Code is neither enforceable in law nor able to be kept under effective review.”

Dear Prime Minister and Chancellor

Spending Review and funding to address Violence Against Women and Girls including domestic abuse

As the Commissioners for Domestic Abuse and for Victims in England and Wales, we write to you ahead of the Spending review announcement to call for effective, longer-term funding to support the Government’s efforts to end Violence Against Women and Girls (VAWG), including domestic abuse.

Domestic abuse affected over 2.4 million adults in the past year. The unacceptable fact remains that in this country one in four women will experience abuse from a partner or ex-partner during her lifetime. We expect a huge spike in domestic abuse this year as a result of the Covid-19 lockdown. Abuse can blight lives for years to come, including those of children exposed to it and who are at heightened risk of a range of social ills, including becoming involved in crime themselves. The Government’s own estimates are that domestic abuse cost society £66bn in the year ending March 2017, and this is itself likely to be an underestimate, as the impact on children was unable to be quantified. Not only does domestic abuse bring untold human cost, but in hard figures the impact on the economy is significant, including £1.4bn in lost economic output, £2.3bn in costs to health service, and £1.3bn in costs to the police, amongst many others.

The Covid-19 pandemic has brought domestic abuse to the forefront of public consciousness, at the same time as bringing into harsher light the inadequacy of current funding arrangements for the life-saving services that support victims and survivors. As people stayed at home, those subjected to domestic abuse were put in an incredibly difficult and dangerous situation. Calls to the National Domestic Abuse Helpline soared, over 70% higher than usual, with some more specialist helplines receiving even higher increases during this period. And, sadly, the Counting Dead Women project found that in the first three weeks of lockdown there were 14 women killed by men; the highest rate for at least 11 years.

We have consistently welcomed the emergency funding provided to services to address these shorter-term surges in demand. But now it is vital that effective, longer-term funding is provided to services as part of this week’s Spending Review. The pandemic has demonstrated how critical these services are, with domestic abuse workers rightly recognised as ‘key workers’ during this period, and services showing remarkable resilience and working around the clock to keep victims safe.

However, funding remains patchy and short-term, with front-line organisations struggling to make ends meet and keep their services afloat. Many frontline workers have no funding assurance beyond March 2021. Without a strong message from Government and committed funding, these workers are at risk of receiving redundancy notices come Christmas and the New Year. We do not believe for a moment you want to see this happen.

Therefore, we call on you to this week – which coincides with the International Day for the Elimination of Violence Against Women and Girls – to show once again leadership and commitment to tackling domestic abuse and all forms of violence against women and girls through a strong funding package to support services and improve the response across England and Wales. Any new Violence Against Women and Girls Strategy must be backed up with Government funding to support our collective efforts to address these devastating crimes. We appreciate that this is an unprecedented time for our country and for public finances, but the cost of not funding services effectively is far too high.

We stand ready to assist in any way we can.

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

Dear Dame Vera

Thank you for your letter of 3 November 2020, regarding the importance of ensuring victims of domestic abuse can access support during the Covid-19 pandemic. As you highlight, these new national restrictions may make it more challenging for victims of domestic abuse. The Government is clear that those experiencing domestic abuse should not stay in danger, but should seek safety and support, as set out by the Prime Minister in his announcement of new national restrictions. Domestic abuse safe accommodation provision, including refuges, remains open for victims and their children during the COVID-19 pandemic.

I welcome your recognition of the swift action undertaken by the Government during the last lockdown period to ensure that vital funds were made available to domestic abuse services, and the significant growth in public awareness as a result of the You Are Not Alone campaign, and the Government is working with communications colleagues to explore a further push for the imminent November lockdown. The Ministry of Justice also committed in June to deliver a new communications campaign to support victims of sexual violence. This campaign is currently being developed in partnership with stakeholders and will seek to raise awareness of victims’ rights and entitlements and the ways in which support can be accessed.

As you highlight, as we enter a second national lockdown it is essential to renew our efforts to tackle domestic abuse. Therefore, I am pleased to announce that we are making over £10m available to domestic abuse and sexual violence organisations, to help them to continue to provide valuable support to victims during the pandemic. This funding is in addition to the £22m COVID-19 funding already distributed to charities across England and Wales since May.

The Government recognises the importance of assisting those facing challenges accessing support. This is why we have worked with key stakeholders to develop guidance for commissioners around effectively supporting BAME victims through the local support services they commission. The guidance, which we are currently testing with Police and Crime Commissioners, aims to improve the effectiveness of services, and the level of engagement between victim support services and BAME victims – through better addressing barriers, raising awareness and understanding needs. This second round of funding includes £7.7m to allow Police and Crime Commissioners to direct extra support to those organisations most in need in their local area.

I am aware that there are real concerns across the sector about sustainability of funding beyond this financial year. This additional £10m in funding supplements the core funding provided to PCCs each year. The SR settlement for the upcoming financial year is still being negotiated, and allocations will be confirmed shortly after.

The government recognises the ways in which support services have innovated and adapted to continue delivering their vital and life-saving services in the pandemic. We want to help the sector to continue to support victims in the most effective way, and as such the government has committed to developing a Victims Funding Strategy, and a new delivery model that will place the sector on a more sustainable footing in the long term.

We remain committed to ensuring victims of crime receive the support they need during this challenging time and continue to work across government, with the sector and local bodies to identify emerging needs.

Thank you again for getting in touch.

Yours sincerely, ALEX CHALK MP

Introduction

As Victims’ Commissioner, I passionately believe everyone, including victims of crime, should have access to justice.  What this means on an individual level will look different for different people, but fundamental principles apply in a fair and democratic society, including the ability of individuals to challenge and hold to account government departments and agencies. Challenge should never be regarded as a hinderance, but a means of ensuring effective and accountable decision making and policy.

The ‘Rule of Law’ (along with Parliamentary Sovereignty and judicial oversight), is fundamentally the defining principle of our ‘unwritten constitution’.  Judicial review is often the prime method by which compliance with the Rule of Law is sought as such, I hope the Panel will approach its task with care and caution.

Section 1 – Questionnaire to Government Departments

1. About the questions for government departments and other public bodies – Are there any comments you would like to make, in response to the questions asked in the questionnaire for government departments and other public bodies?

I am concerned by the questions for government departments and public bodies.  Their tone seems to suggest judicial review may seriously impede the function of their work, that it is always antagonistic in nature and that it could adversely affect decision making.  Judicial review by its’ nature will only succeed where a public body has acted illegally. Indeed, there are examples where even the mention of judicial review has compelled public authorities to review and amend their actions.

As judicial review considers the lawfulness of actions by public authorities and government it can serve the important function of clarifying the legal position for government and public authorities.

As outlined above it is a key mechanism of accountability and is often one of very few options open to victims of crime who have been let down by criminal justice agencies and are seeking justice.

As an example of how important judicial review is as a method of oversight and accountability, two survivors of the so -called ‘black cab rapist’ John Worboys won their claim for compensation from the Metropolitan Police after the supreme court ruled that the force had failed to carry out an effective investigation into the serial sex attacker. The judgment sets a far-reaching precedent for police liability by allowing victims to argue that they have been subjected to inhuman or degrading treatment under article 3 of the European convention on human rights.

In a second judicial review, the claimants challenged the Parole Board decision to release Worboys. This was the first time that a decision to release a prisoner had been challenged in the courts. Previous cases had been brought only by prisoners appealing against decisions to deny parole. The case was also notable as the claimants underwrote their legal costs entirely through crowdfunded resources. The High Court ruled that the Parole Board behaved “irrationally” by not seeking more information, both for the offences for which Worboys was charged and for other potential offences and quashed the release decision.

Further, the Court upheld the challenge to the vires of Rule 25(1) of the Parole Board Rules 2016. There were no obvious reasons why the open justice principle should not apply to the Parole Board in the context of providing information on matters of public concern to the very group of individuals who harbour such concern, namely the public itself. This information could readily be provided in a fashion which in no way undermines the prisoner’s ECHR, art 8 rights and the confidentiality which attaches to it.

This ruling has had a profound impact on the parole process and has resulted in thousands of victims being entitled to receive high level summaries of parole decisions for the first time.

No victim had challenged the Parole Board before or since this case and without the means of judicial review, I am confident extending of the principle of open justice to parole would never have happened. The findings were embraced by the government and it is an example of how judicial review can enhance public policy.

2. In light of the IRAL’s terms of reference, are there any improvements to the law on judicial review that you can suggest making that are not covered in your response to question (1)?

The call for evidence places a great deal of emphasis on government, organisations and legal actors within the process, but there seems to be less focus on individuals. I would like to understand what steps the panel is taking to ensure claimants’ views are sought as part of the reform process.  In particular, I believe it is vital the panel hears from victims of crime, like those of John Worboys (above), who have used judicial review as a means to challenge decisions.

The “Duty of Candour” in judicial review is vital both to ensure equality of arms and to ensure important information, which may otherwise be hidden, comes to light. It would be a hugely retrograde step if this was lost through any reform.

Section 2 – Codification and Clarity

3. Is there a case for statutory intervention in the judicial review process? If so, would statute add certainty and clarity to judicial reviews? To what other ends could statute be used?

I question whether the grounds, rules and remedies of judicial review are ‘uncertain’.  It is vital judicial review be accessible, knowable and certain, but it is possible any statutory codification could obfuscate things further.  If the panel is minded to go down that route, it will need to ensure codification does not make it harder for individuals to challenge unlawful actions by government and does not undermine access to justice or the rule of law.

4. Is it clear what decisions/powers are subject to Judicial Review and which are not? Should certain decision not be subject to judicial review? If so, which?

I reiterate my earlier points.  An essential component of a fair and democratic society is that everyone has the means to challenge the lawfulness of actions taken by government and that there are proper mechanisms for accountability.  If certain decisions were taken outside the scope of judicial review, what mechanism would take its’ place to ensure that government is held to account?

5. Is the process of i) making a Judicial Review claim, ii) responding to a Judicial Review claim and/or iii) appealing a Judicial Review decision to the Court of Appeal/ Supreme Court clear?

The process of making and responding to judicial review, as set out in the civil procedure rules, is generally well understood by lawyers. However, I accept there are issues of accessibility for those claimants who cannot afford legal representation.

Section 3 – Process and Procedure

6. Do you think the current Judicial Review procedure strikes the right balance between enabling time for a claimant to lodge a claim, and ensuring effective government and good administration without too many delays?

The time-limits in judicial review are already tight and even applications within the three-month time-limit can also be excluded if the court does not consider the application to have been brought promptly. Any shortening of these time limits risks excluding meritorious claims.

The current time-limit is already problematic for those who need to seek legal advice and representation, apply for legal aid, follow pre-action protocol and, as judicial reviews are front- loaded, file most of their evidence with their claim. This can be very onerous for any claimant, but particularly one who has been a victim of crime and may be experiencing significant trauma.

In terms of the impact on effective government, an effective government must surely be one which is open to challenge, is accountable to those it governs and is able to defend its actions robustly when scrutinised. Judicial review should be regarded as a means of enhancing the effectiveness of government and not undermining it.

It should also be pointed out that claims without merit are more often than not filtered out at the permissions stage and only those that progress to full consideration are those that are identified as having an arguable case.

It is only right and proper that access to justice is upheld including by ensuring that time-limits are realistic and fair.

7. Are the rules regarding costs in judicial reviews too lenient on unsuccessful parties or applied too leniently in the Courts?

The risk of having to pay the other sides costs is a serious barrier for many individuals and organisations seeking judicial review. This is unfair.

Legal aid is essential for many claimants and access to judicial review should not be dependant on means. Current eligibility rules mean many cannot afford to take the risk of being ordered to pay their opponents’ costs and are not eligible for legal aid.  This is a clear access to justice issue.

8. Are the costs of Judicial Review claims proportionate? If not, how would proportionality best be achieved? Should standing be a consideration for the panel? How are unmeritorious claims currently treated? Should they be treated differently?

Are costs in JR proportionate?

See above

Should standing be considered by the panel?

See question 13 below.

Should unmeritorious claims be treated differently?

No -comment other than maybe this is a good reason for legal aid to be available so individuals can have advice from a lawyer.

9. Are remedies granted as a result of a successful judicial review too inflexible? If so, does this inflexibility have additional undesirable consequences? Would alternative remedies be beneficial?

Surely the majority of remedies imposed by the courts are designed to ensure the decision-maker complies with the rules set out by Parliament? It is not clear what alternative remedies the panel may have in mind.

10. What more can be done by the decision maker or the claimant to minimise the need to proceed with judicial review?

Judicial reviews are frequently settled at an early stage because decision-makers recognise the merits of the claim.  Extending the time-limits for judicial review may give more time for this kind of pre-action negotiation, which would in turn reduce applications. Reducing the time-limits would lessen the opportunity for such a settlement.

11. Do you have any experience of settlement prior to trial? Do you have experience of settlement ‘at the door of court’? If so, how often does this occur? If this happens often, why do you think this is so?

Settlement whenever it happens is part of the process and should be seen in this context as a positive, see above.

12. Do you think that there should be more of a role for Alternative Dispute Resolution (ADR) in Judicial Review proceedings? If so, what type of ADR would be best to be used?

No comment here

13. Do you have experience of litigation where issues of standing have arisen? If so, do you think the rules of public interest standing are treated too leniently by the courts?

The majority of judicial review applications are made by individuals and the courts are careful to limit the standing of inappropriate parties.  For example, in DSD (the case involving a challenge to the Parole Board’s decision to release John Worboys, above) the Court accepted the victim’s family had standing to bring the case but rejected the standing claim of the Mayor of London.

However, public interest standing is a vital mechanism for challenging the decisions of public bodies. For example, the judicial review brought by the Centre for Women’s Justice and the End Violence Against Women Coalition in respect of changes in CPS policy and the resulting decline in rape prosecutions included a dossier of evidence from victims of rape, who did not have their cases prosecuted is brought on that basis. The advantage of these charities having public interest standing is that there is one judicial review and not many.

A charity or organisation with public interest standing will still need to have a legal argument, just like any individual claimant. They may not simply challenge the merits of a decision.

As stated elsewhere it is vital to a fair society that someone should be able to challenge unlawful decisions and actions of public bodies. It will depend on the circumstances whether this is an individual or an organisation with public interest standing. Claims without merit claims will be rejected. Access to justice in this way is of paramount importance and limiting public interest standing would impede access to justice for many individuals.