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Summary

Rape and serious sexual violence are now well understood to be the cause of serious on-going trauma in survivors. Some experience PTSD as a result of their experiences and for many there is need to obtain therapy.

I am pleased the Crown Prosecution Service has re-drafted its’ guidance on this topic since the last version is now outdated. and I am encouraged that this guidance states explicitly that therapy should not be delayed due to concerns about criminal proceedings.

I very much endorse the warning to police and prosecutors that therapy notes should never be sought as a matter of course and only where they might be a legitimate line of enquiry. Taken with the new RASSO guidance, also in consultation, I hope this will result in new training for all those involved RASSO cases, putting an end to speculative wholesale investigation of victims’ personal lives.

However, I remain concerned that without cultural change, victims may wrongly be encouraged to delay therapy, or the prospect of disclosure of counselling notes may for some act as a disincentive to getting the help they need.

There are a number of different but connected pieces of work going on in respect of sexual violence survivors both in Government and across CJS agencies. All of this work can appear to be happening in isolation and it seems logical that this guidance be completed only after certain other pieces of work have been.  For example, you say in the consultation preamble you anticipate a further ICO report later in the year, looking specifically at third party material. Whilst appreciating this piece of work on pre-trial therapy is long overdue, it might be expedient to await the ICO findings in case they conflict with this guidance.

One key theme running throughout is survivors of sexual violence have in recent times been severely let down by the criminal justice system.  I would agree. This is why I want to see top down cultural change. So whilst I welcome new and improved guidance, I am interested to know what other measure are being put in place to ensure cultural change is actually delivered.

Responses

The consultation seeks views on the following questions that relate to key objectives of the revised guidance.

1. Will the revised guidance and, in particular, the key message that therapy should not be delayed for any reason connected with a criminal investigation or prosecution, encourage victims to obtain the therapy they need in a timely fashion?

I note this guidance is not aimed at victims and as such, it will not directly encourage or discourage victims to obtain therapy.  This is just as well as the language used is often quite inaccessible. I recommend that to accompany this guidance, there should be an accessible guide for victims, which outlines their right to obtain therapy but also advises them of the potential for disclosure and which ‘types’ of therapy may be more likely to present issues in a court case.  This should be developed in conjunction with support sector experts in sexual violence.

The messaging for professionals is clear that access to therapy should not be delayed and I welcome this. Alongside this guidance, I would like to hear about training and other measures designed to change a culture in which victims are frequently put off from obtaining counselling by criminal justice agency practitioners advising that therapy could impact a trial. This culture will not evaporate simply because new guidance has been published.

The guidance will also have to reflect any recommendations arising from the government’s end to end rape review in respect of disclosure of counselling records and notes. It is essential victims of crime, in particular rape and sexual violence, have unfettered access to therapy to deal with any trauma they have experienced.

Therapy, in general, is focussed upon feelings and emotional responses to trauma rather than facts or rehearsing the details of a traumatic incident. Therefore, counselling notes/ records of therapy should not ordinarily form either a reasonable line of enquiry or be disclosable. The current practice within the criminal justice system of wholescale intrusion into victims’ private lives when they report a sexual crime needs to change. This guidance makes clear speculative requests are inappropriate and I welcome this. But once again, I make the point how will this guidance translate into changes of practice on the ground.

The way in which counselling notes are used in court, and arguably at an earlier stage, to undermine or otherwise assess a victim’s credibility is an important consideration here and is tied up with rape myths and stereotypes, which are referenced in the new RASSO guidance under consultation. I would like to see a link between the two pieces of guidance, which is currently missing, in the form of an explicit assertion victim credibility should not be assessed in light of counselling notes without a clear and explicit justification.

2. Will the revised guidance assist in addressing the perception that therapy will damage the prosecution case? 

Presumably this question is asking about the victim’s perception of police and prosecutors? It will certainly assist, however taken in isolation is not enough, as outlined above.

Again, there needs to be whole system change here. The reality on the ground is that the defence will use counselling records to undermine the credibility of a victim if they can and this is currently seen by the system as legitimate. However, this must be challenged as it fees into rape myths, stereotypes and unconscious bias.  Juries are influenced by how a trauma victim presents and how a defendant presents, and they can hold biased views about class, race, age culpability etc. Most importantly, those who have experienced trauma can appear disorganised or chaotic and sometimes ‘self-medicate’. Counselling/ therapeutic notes can be used to play into the juries ‘just world’ bias and result in victim blaming.

Will the revised guidance assist in raising awareness of how a traumatised victim may present? 

Yes, to a point. However, the guidance needs to be contextualised within wider guidance and be accompanied by training and other measures to ensure this understanding of presentation is woven throughout and ultimately explained and outlined to a jury to mitigate any bias etc.

Questions 3 to 12

3. Will the revised guidance including the content of Annex A assist in raising awareness about different forms of trauma-based therapy?
4. Is the revised guidance covering therapies that might cause difficulties at pages 12 and 13 accurate, useful and comprehensive?
5. Is the revised guidance for therapists at pages 5 and 6 covering discussions with a victim prior to commencement of pre-trial therapy accurate, useful and comprehensive?
6. Does the revised guidance including Annex B provide sufficient clarity to therapists around how to record a disclosure of criminality made by a victim during the course of therapy?
7. Does the revised guidance provide sufficient clarity to therapists around procedures to follow when called upon to assist with a police investigation?
8. Does the revised guidance provide sufficient clarity around the circumstances when an investigator might seek access to pre-trial therapy notes during the course of an investigation including the importance of avoiding speculative enquiries?
9. Does the revised guidance provide sufficient clarity around the process that should be followed when an investigator seeks access to pre-trial therapy notes including obtaining the victim’s informed consent?
10. Does the revised guidance provide sufficient clarity around the circumstances when an investigator will be required to pass material contained within pre-trial therapy notes to a prosecutor?
11. Does the revised guidance provide sufficient clarity around the circumstances when a prosecutor might be required to disclose material contained within pre-trial therapy notes to the defence and how, during that process, consideration is given to the consent of the victim?
12. Do you have any other feedback you wish to share around how the revised guidance could be improved?

I am not qualified to answer these questions. However, I will touch upon some of them in a more generalised way here.

The guidance does not deal well with the situation where an individual has been in therapy for some time and only at that point makes a disclosure of non -recent sexual abuse. As the first account will be within the context of therapy, this does make the notes of therapy sessions potentially a reasonable line of enquiry, but there is no guidance here about what the parameters might be.  This is similar to the situation regarding digital downloads, where complainants’ data held on phones was being routinely downloaded in its entirety.  There’s a risk here that all counselling/ therapy notes may be sought.  The guidance does need to be far tighter here.

The guidance assumes parity amongst therapists, but not all persons who hold themselves out as therapists will be familiar with this guidance or indeed professionally accredited. The ‘profession’ is quite unregulated.  How prosecutors and others deal with this in the context of criminal proceedings is not covered.  There is increased risk to victims who are in a therapeutic relationship with such a therapist of their prosecutions collapsing because the situation has not been adequately discussed with them at the outset as per the guidance.

Again, the language here is inaccessible in places and there should be accessible guidance for victims/ survivors and for therapists.

The list of therapies contained within the guidance is not exhaustive and could do with being more detailed as it could lead to ambiguity and confusion.

The situation with children is unique and this guidance does not deal with the views held by some in the system that children automatically make unreliable witnesses. as with rape myths and stereotypes, which also apply to children, this inherent belief that children present more challenges in respect of reliability needs to be addressed.  The situation with regards to children and refusal to consent to records being disclosed i.e. discontinuance or a public interest immunity application is also not well delineated even though the considerations will be different for children and adults.

I have significant concerns about the impacts of delays in proceedings and how these impact upon victims accessing therapy. Previously, victims have been advised not to seek therapy until the conclusion of a trial. Prior to Covid-19, from investigation to verdict, some proceedings were taking up to 2 years.  We now have an unprecedented back-log in the courts following lockdown, and these time frames only likely to grow.  We know victim attrition can be linked to a number of issues, including concerns about disclosure, lack of support and feeling they are being scrutinised, but delay also has a significant impact. This is exacerbated when victims are advised against accessing therapy and can lead to feeling stuck and unable to move on. Some victims will withdraw in an attempt to move on with their lives.  The impact of delay needs to be addressed in the guidance, highlighting potential positives of therapy, which can often reduce the rate of attrition.

Finally, although we did not ask specific questions about pre-trail therapy, the findings of my recent survey of rape survivors found the following which helps to underline what we have said above:

“Highlighting the value of professional help, [a chart in the report shows] a trained counsellor/ psychologist was rated highest, with 71% of the 218 respondents who received such support valuing this as very important. The high number of respondents receiving this kind of support perhaps implies that this group were likely to be quite advanced in processing the rape, which perhaps ties in with feeling able to tell their stories despite the attendant trauma.

We asked survivors about whether the police asked for access to their mobile phone data, other digital devices, medical, counselling, social services or education records. Two thirds of survivors said that the police had requested access: 26% saying that all of these were requested, 40% saying that only some were requested. Just over a quarter of respondents said that access was not requested (26%), and the remaining 9% were not sure.

Survivors were asked about how the police explained the reasons for accessing digital and other records, as well as how they would access those records. One in three agreed that the police clearly explained why any requests to access my mobile phone and other private data were necessary (11% strongly agreed, 22% agreed). Around one in five survivors agreed that the police clearly explained how they would ensure that they would only access mobile phone and other private data that was relevant and necessary.

Many survivors said that they wanted to help with the investigation and achieve a positive outcome. Some did not believe that they could refuse such requests, that they did not have anything to hide, or thought the requests were simply part of normal investigation procedures. However, most survivors had concerns around the disclosure of personal data and access to records.

Many survivors said they felt that the requests were invasive, intrusive, violated their privacy, and that they concerned about how that information could be, or was, used against them in court. Some survivors compared the request to the violation inflicted by the rape. Other survivors said the volume of digital data and records requests exceeded what they thought was reasonable. In the words of one survivor: ‘One thing is for sure, the police and CPS must stop using requests for spurious information about victims as a deterrent to report’. Other survivors told us that they thought the disclosed information was irrelevant to the investigation.

Throughout the criminal justice process, survivors talked about how their credibility was repeatedly tested. We found evidence that survivors’ fears about not being believed is inhibiting the reporting of rape. Many survivors felt that complaints which solely relied upon their testimony would not have enough evidence to proceed.

When some survivors reported incidents to the police, several told us about how they did not feel believed, but felt interrogated, were called a liar, or they felt the incident was minimised. Survivors described how individual officers made them feel disbelieved. In addition, most survivors had concerns about the requests to access their personal records and many felt they were under suspicion or were treated like a criminal. Survivors said officers had told them they would not be believed by a jury.”

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Overview

A survey of nearly 500 survivors of rape, undertaken by the Victims’ Commissioner, Dame Vera Baird QC, has highlighted just 14% believed they would receive justice by reporting the crime to the police.

This comes at a time when reports to police about rape have increased hugely but cases charged by CPS have dropped markedly. In 2019/20 there were 55,000 reports of rape to the police, but only 1,867 cases charged. In addition, the proportion of victims who chose to withdraw their support for their case has steadily increased (from 25% in 2015/16 to 41% in 2019/20).

In response to the fall in rape prosecutions, in 2019, the government launched an End to End Review of how rape is dealt with in the criminal justice system.

Dame Vera says:

“The government’s Review’s team took the surprising decision not to seek the views of those who really matter – rape survivors. As Victims Commissioner, I believed it was imperative that the victims’ voice be heard. We placed a questionnaire on our website and were overwhelmed by the response – nearly 500 survivors took part and shared their experience of the justice system with us.

“On every page of this report, the victims’ voice can be heard loud and clear and the findings speak for themselves.”

The survivors told us:

• Being believed is one of the most important things to survivors, but many feel their credibility is tested through each stage of the criminal justice process
• Many survivors experienced poor treatment from individual criminal justice practitioners
• Survivors had serious concerns about the use of digital disclosure requests and how they felt that their privacy had been violated
• Prompt, proactive communication is very important to survivors, though many told us they had to chase for updates
• Survivors highly value the support given by victims’ services and Independent Sexual Violence Advisors
• Decisions to take no further action and not to prosecute can have devastating effects on survivors and it often appears to them that good evidence has not been considered and the reasons for discontinuing are insufficient.
• Survivors gave various reasons for not taking further action and withdrawing their rape complaints, such as fears of the criminal justice process and wanting to move on
• Survivors’ experience of the courtroom and rape trials is traumatic, they often feel isolated and attacked in the courtroom
• Survivors want to be treated sensitively, fairly, respectfully, to be believed, but also for criminal justice system professionals to better understand trauma, provide clear and timely information, and to offer better access to ISVA and support services
• Rape survivors have low levels of confidence in the criminal justice system’s handling of rape complaints

Dame Vera says:

“Page after page of this report, you will see the powerful first-hand testimony of rape survivors and their experience of our criminal justice system. And it does not make comfortable reading.

“Survivors want to be treated sensitively, fairly, respectfully, to be believed, but also for criminal justice system professionals to better understand trauma, provide clear and timely information, and to offer better access to support services. And on all of these fronts, the justice system has been found wanting.

“We already knew the number of rape complaints resulting in a charge was at a record low. We were aware the proportion of rape complainants withdrawing their support for a prosecution was at an all-time high.

“It should therefore come as no surprise to find that only around one in seven rape survivors tell us they have any hope of receiving justice.

“This survey and the voices behind it reveal the extent of the crisis within our justice system.”

Criminal Injuries Compensation Scheme Review 2020

Dear Secretary of State

I am writing in response to your consultation in response to the MoJ Criminal Injuries Compensation Review, which was published on 16 July.

Firstly, I must congratulate your officials on a comprehensive piece of work. I am also grateful the review has acknowledged and considered the recommendations made by my predecessor, Baroness Newlove in her report “Compensation without Re-traumatisation” published in January 2019. There are some recommendations in her report that have not been covered by this review and I will be referring to these as part of my response.

Criminal injuries compensation is an important part of the package of support on offer to victims of sexual and violent crime. A compensation award can offer some catharsis to victims, in that society is acknowledging the terrible wrong that has been done to them. In delivering a compensation scheme of this nature, we must never lose sight of the fact that many victims who make applications are traumatised and still suffering from the life changing psychological and physical injuries inflicted upon them.

In my capacity as Victims’ Commissioner, I am often contacted by victims, raising issues of concern about the criminal injuries compensation scheme. This correspondence is valuable in giving me a victim perspective of the scheme.

I also have regular one to one meetings with the CEO of the Criminal Injuries Compensation Authority (CICA), Linda Brown, and these meetings have been helpful in enabling me to understand how the scheme operates and some of its limitations. I am grateful to Ms Brown for being so responsive to the issues I have raised, and I will make further reference to this in my response.

I was also pleased to address the annual training conference of the Criminal Injuries Compensation First-Tier Tribunal Annual Conference on 12 November 2019 and was impressed by the appetite of the Tribunal to make changes to improve the quality of the victim experience when appealing against CICA decisions.

Compensation without Re-traumatisation

In compiling her report, “Compensation without Re-traumatisation”, (CWR) Baroness Newlove’s researchers engaged with over 200 victims, as well as a wide range of stakeholders. She concluded that whilst compensation awards were well received by victims, the process of making their claim was often traumatic, and beset by delays, uncertainty and poor communication. To many, fairly or unfairly, the scheme seemed “calculated to frustrate and alienate”.

She highlighted patchy and, in some cases, non-existent support for victims wishing to claim, with nearly 40% feeling the need to rely on third parties to make the claim on their behalf. She was particularly concerned that one in three of the victims who participated in her research did not recall being told about their entitlement to claim by the police or victim services, raising a question as to whether there are potentially thousands who fail to claim compensation simply because they are unaware it is available.

She flagged up concerns regarding the level of understanding of other criminal justice practitioners about how the scheme operates. She also raised the issues of victims, invariable of sexual violence, being cross-examined by defence barristers on whether they had made an application for compensation, and whether this had motivated their complaints.

She concluded there needed to be wide-ranging reforms focused on detraumatising and simplifying the criminal injuries compensation application process, including not requiring victims repeatedly having to relate the details of the crimes against them and providing victims with named caseworkers who handle their claim and keep them updated.

She called for free access to legal support to those vulnerable victims who cannot reasonably be expected to submit a claim without assistance. At present, these victims are using lawyers and are losing up to 30 per cent of their award in legal fees.

She also asked Ministry of Justice to review specific aspects of the Scheme relating to monies held in trust, conduct, and unspent convictions, all of which are issues that adversely impact upon groups of particularly vulnerable victims.

Eighteen Months Later

In the 18 months since CWR was published, a lot has changed and much for the better.

Staff and managers within the CICA have invested a significant amount of work in the past year reviewing their processes and seeing how they might be improved. The number of cases taking more than 12 months to resolve is steadily falling and they have taken steps to make their standard letters more empathetic and reduce the complexity of the application form.

Sexual abuse complainants are no longer being asked to repeat their story of the traumatic crimes committed against them in order to make an application, since CICA will rely on the police report for its basic facts about the case. This is a welcome development and will make the application process much less traumatic for these victims.

I particularly welcome the move to provide a single point of contact or named caseworker to victims who had either suffered bereavement, were aged over 70, had limited life expectancy, had complex cases, including multiple applications or claims which had previously fallen under the “same roof rule”. I understand this has been well received by victims.

I note the sharp increase in recorded victim satisfaction with CICA and feel sure these improvements will have contributed significantly to this.

The decision to rescind the unlawful “same roof rule” is also welcome and has removed a long standing and terrible injustice, although as my predecessor pointed out, new applications will have to be made under the 2012 Scheme, which is significantly less generous than earlier schemes under which many victims had previously applied and were rejected. This continued inequality cannot be right.

Raising awareness of criminal injuries compensation

Paragraph 10 states that raising awareness of criminal injuries compensation is outside the scope of the review, although in paragraph 15, the report acknowledges that there is a lack of awareness.

I am aware that this issue will be considered as part of the work currently being undertaken on the Victims Code, but given our concerns about lack of awareness, I believe this issue should be addressed separately and as part of this review.

Baroness Newlove was particularly concerned that one in three of the victims taking part in her research did not recall being told about their entitlement to claim by the police or victim services. This raises a question as to whether there are potentially thousands of victims who fail to claim compensation simply because they are unaware of the compensation scheme.

The current Victims’ Code of Practice is silent on the issue of which agency is responsible for advising victims of their eligibility for compensation and this is an important omission, to be addressed by the new Code which is likely to come into force within the coming months.

However, simply placing this into the Code is not sufficient. There needs to be a concerted campaign to raise awareness and understanding of criminal injuries compensation across the criminal justice system. This will ensure more victims are properly advised of their eligibility, as opposed to finding out by chance or through a third party.

Of equal importance, it should also mean that victims are not misinformed by criminal justice agencies. There is strong anecdotal evidence that police officers are advising victims of sexual violence not to claim compensation until after the trial is over. This is because victims are frequently being cross-examined by defence barristers about whether they had made an application for compensation, and whether this had motivated their complaints. Clearly, police officers are seeking to protect the victim from this particular line of questioning and have their best interests at heart. Nevertheless, given the delay in getting cases to court, this means taking these victims outside of the two-year window for submitting a claim.

The motivation of the police in giving this advice is well meaning, but the possible outcome is serious for the victim. Later in this document, I advocate amending the time limit for submitting an application in order to avoid this dilemma.

Non-contact crimes

The report considers the issue of whether victims of certain no-contact crimes should be eligible to claim compensation and concludes that they should not.

At present, a crime of violence is defined widely enough to allow the victim of a threat which puts them in fear of immediate violence to make a claim, so it would be wrong to claim that someone who is not touched and who suffers no physical injury (though perhaps a psychological injury) is currently ineligible to make a claim. Eventually this is bound to call into question why other noncontact crimes which can cause trauma or psychological injury, are excluded from the scheme. These offences might include stalking, harassment, coercive control, image-based abuse and potentially many others.

I have reflected carefully on this issue. The list of non-contact crimes that can cause psychological harm is extensive and the question is where you draw the line? Therefore, and with some reluctance, I accept the premise that the scheme was not intended for non-contact cases and at this stage, I am not calling for this to be changed.

However, we should not rule this out at some future point. Our understanding of trauma and psychological harm is constantly evolving, and we now recognise the long term and debilitating impact this can have on victims. Instead, I would prefer that this issue be given further consideration, with possible options for what offences might be ruled in or out and what the supporting rationale might be.

Consent in sexual assault claims

I don’t accept the argument that there should be a factual question whether an under aged complainant ‘in fact’ consented to sex. The determinative argument should be that the law says, with good reason, that a person under 16 does not have the capacity to consent. Anyone who has sex with a person under the age of 16 has therefore imposed a criminal injury. It contrary to public policy for a state institution to take a stance which contradicts the law.

I accept CICA guidance is now less exclusionary than it was prior to the 2017 campaign to establish this very point. The scheme now operates a presumption that there was no consent. However, I believe this is insufficient and I am very concerned how an official within CICA will purport to assess whether a child who the law says cannot consent, in fact consented.

The scheme requires that the claimant reports to police and supports their action in seeking to pursue a prosecution. That means that a subsequent CICA finding that the child consented to sex is an assertion that s/he lied to police and arguably perverted justice in doing so.

There is abundant research showing the prevalence of rape myths and stereotypes in the population including, as with all other sectors, inevitably, officials required to make these decisions. Young girls have suffered in the recent past from criminal justice and social services officials approaching their early involvement with males as a lifestyle choice, based on precisely such myths and stereotypes. I fail to understand on what possible basis is a CICS official, not a paediatric psychologist or in any other way qualified to judge, can determine whether an under aged child in fact consented to sex when they say that they did not?

I profoundly disagree that an under-age child should be exposed to deeply intimate personal scrutiny by unqualified civil servants within CICA in order to second guess, for compensation purposes, the law’s stance that she/he is incapable of giving consent. Any wrong finding of consent will be deeply injurious to the future well-being of such a child, compounding the injury done to him/her by what the law clearly accepts was a sexual assault in the first place

Victims of Terror

I welcome the fact that CICA set up a special incident team of experienced staff to handle claims arising from terror incidents. This should speed up the process and provide a single point of contact for victims. This is a good initiative.

Paragraph 79 refers to the fact that a high proportion of victims of terror make civil claims and that tax-payer funded compensation may be deferred as a result. This causes me concern. Deferring payments may cause real hardship for victims, particularly given the civil process can sometimes take years before a settlement is made. I would prefer victims be offered tax funded compensation, with an understanding that it will be refunded if their civil claim eventually succeeds.

Paragraph 80 goes on to state there is a “strong case” for having a “stand alone” scheme for these victims. It is not clear what this case is and how victims will benefit from such a move. Paragraph 80 acknowledges there are comparable outcomes for applicants for terror incidents as there are for applicants of all other types of crime. If there is a desire to improve these outcomes, for example, accelerating the decision-making process, I would hope this would apply to all applicants and not just to those of terror incidents.

In the absence of a clear and compelling case for making this change, I fear we might be accused of creating a “victim hierarchy”.

There is also a need for the government to review the handling of public donations in aid of victims of terror. There is a lack of transparency in how this money is distributed and as the report acknowledges in paragraph 77, the level of donation varies significantly from one attack to another, even though the impact on victims can be the same.

Victims of Homicide Abroad

I strongly support the proposal to extend eligibility to criminal injuries compensation to include families who have lost a loved one to homicide in another jurisdiction.

My report “Struggling for Justice” highlights the experience of bereaved families when a loved one is murdered abroad. To lose a loved one to murder is a horrific and devastating experience, no matter where the crime takes place and, in that report, I argue that we have a duty to treat all such victims equally and fairly.

Currently, families of those murdered abroad have fewer entitlements than other bereaved families. These families are not entitled to criminal injuries compensation, unless the death occurred as a result of a terror attack. This is unjust, particularly when bearing in mind they will have just the same additional financial burdens as a victim of terrorism abroad and significantly more than someone bereaved at home.

Paragraph 85 states if the death occurs within the EU, the families can apply for compensation from the country in which the death occurred. This presents logistical difficulties, such as language and getting information on how the scheme operates, Furthermore, the report in paragraph 127 refers to the UK scheme as “one of the most generous in the world”. Therefore, what we are saying is that these families should apply to a less generous scheme compared to the scheme on offer to other bereaved UK families. How can this provide equal and fair treatment in comparison to the treatment of bereaved families of a homicide in the UK.

Paragraph 88 refers to operational difficulties, namely in getting information on how the death occurred when it happens outside of the UK. These families will be only too familiar with these difficulties, but this should be used as a reason for not offering them parity of treatment.

I would like to see the government move at speed to extend eligibility to claim compensation to all UK families bereaved following homicide abroad.

Time Limits

When gathering evidence for the CWR report, victims, legal representatives and Police and Crime Commissioners reported that the police often advise victims not to apply for criminal injuries compensation before or during a trial.

This is because defence lawyers could use this against them at trial, implying they were only making allegations in order to claim compensation. Some legal representatives also reported that they had witnessed defence lawyers using victims’ applications for criminal injuries compensation against them in court.

The victims’ lead for the NPCC also acknowledged there are occasions when this happened, although such advice is contrary to College of Policing guidance.

Given the increasing delays in getting cases to trial, particularly sexual violence cases, victims who delay their applications are very likely to be out of time to apply for compensation.

Police officers and others supporting victims of sexual violence must be made aware of the implications of such advice and judges should be alert to defence counsel using compensation applications as a means of undermining the veracity of a complainant’s evidence.

Of course, the decision to no longer require applicants who are victims of sexual violence to give a fresh account of the crime (referred to earlier) avoids any suggestion that differences between the account on the CICA form and the original witness statement suggests the allegation is untrue.

However, whilst this is an ongoing issue, I remain concerned about the impact on this group of victims of a two-year time limit.

In paragraph 74 of the report, it is stated that a three-year caseload of 75,000 cases included 13,000 applications received after the two-year cut off point. Whereas sexual injuries account for 25% of all claims, they accounted for 82% of late applications, and this re-enforces my concern about the advice being given to this group of victims.

Of those who made an out of time application, 72% received an award, which offers some reassurance. Nevertheless, some who gave evidence to CWR claim they had to challenge an initial refusal before their claim was considered. We also do not know how many were put off from claiming as they believed their application would not be considered.

I accept there needs to be a cut-off point, but the evidence suggests the current two-year limit is unfairly disadvantaging a specific group of victims and this needs to be addressed.

Baroness Newlove, in her report, recommended a sensible amendment to address this issue, namely a two-year limit from the date of reporting the crime or one year from the completion of criminal justice proceedings, whichever is later. I strongly recommend that this proposal be given further consideration.

Unspent convictions

Baroness Newlove, along with other stakeholders such as IICSA and the APPG for Adult Survivors of Childhood Sexual Abuse, have argued that the rule making claimants with unspent convictions ineligible to claim compensation should be either revised to give decision-makers the discretion to make case by case decisions or abolished altogether. This is on the basis of the impact this rule has had on victims of abuse, exploitation and controlling and coercive behaviour.

The scheme fails to differentiate between victims who have been forced to offend by their exploiters and abusers, and offenders who have more agency over their actions and it penalises individuals who have already been through harrowing experiences. It will have a disproportionate impact on victims of trafficking, criminal and sexual exploitation and domestic abuse.

I agree with this analysis and am not convinced by the arguments set out in the report in support of retaining the current exemption. The report argues that offenders must fairly bear the impact of their offending, including exclusion from compensation. In doing so, it presents a binary view of criminality and victimisation at a time when the rest of the criminal justice system, law enforcers, prosecutors, sentencers, are becoming increasingly aware of the overlap between the two.

In recent years, we have seen many examples of this overlap, including organised sexual exploitation (Rotherham, Newcastle) criminal exploitation (county lines), institutional child sexual abuse, and the recognition that coercive control should be a criminal offence.

There is also disproportionality built into this exemption, since a minor unspent offence loses the claimant compensation even where they may have sustained life-changing injuries. They are treated in exactly the same way for this purpose as someone who has committed a very serious (unspent) offence and is, perhaps rightly refused compensation for a relatively minor assault or a threat.

Last year, I had the pleasure of addressing a training conference for Tribunal members dealing with criminal injuries compensation appeals. They wanted a return to the ability for them to exercise judgment/discretion over who should and who should not be disqualified from compensation through unspent offences. I support this view. They are highly qualified and are accustomed to assessing what is fair and able to exercise good judgement in a graded and nuanced approach to what is just. If they were given that responsibility, they would quickly establish a bank of precedents, which would be of great use to help CICA staff to make a preliminary decision on the same point, subject to appeal to the Tribunal.

Having said there needs to be some discretion, I also recognise some very serious unspent offences probably ought automatically to exclude someone from compensation. I can see the point of having a threshold of offences above which there will be no award, so that the CICA is not flooded with unrealistic applications.

In conclusion, whilst recognising the complexity and many challenges created by the overlap between victimisation and criminality, these should not be an excuse for not finding mechanisms to reflect this within the criminal injuries compensation scheme. Those who are caught in this overlap will have been punished for their criminality by the justice system, but in certain cases, this should not mean society no longer recognises them as victims.

I am calling for applications where the victim has an unspent criminal conviction being dealt with on a case by case basis, with CICA staff being given careful guidance on how their discretion should be applied.

The “Same Roof” Rule

I support the proposal to remove the same roof rule which applies only to adults. The same roof rule was unfair and created inequality of treatment for many victims of abuse. Following the ruling of the Court of Appeal that it was discriminatory, the government was right to abolish it in cases where the victim was a child. For exactly the same reasons, it should do the same in cases where the victim was an adult at the time the abuse took place.

Police reporting requirement

It is important that the current reporting requirement remains in place, not least because this is the basis on which we have been able to remove the requirement for victims of sexual assault to provide a detailed account of the offence on the application form.

If we were to move from this, it is likely to require CICA staff having to get involved in a significant amount of fact finding as to whether there was a crime and who started it etc. If there is a report but no prosecution, it is right that the scheme continues to rely on police reports

Emergency Workers

I agree that more should be done to raise awareness across the emergency services of the criminal injuries compensation scheme and the fact that there needs to be a report to the police before the emergency worker becomes eligible.

Injury Awards

I agree that no amount of compensation can ever make up for the harm and suffering caused to victims of violent and sexual crime. Nevertheless, compensation is an important and public recognition of their suffering and with this in mind, it is disappointing that the tariff of payments is not adjusted in line with annual inflation. In practice, this means public recognition is in effect being steadily eroded year on year. The impact of the crime upon the victim remains the same, but the level of recognition is gradually diminished.

One example is the maximum award, which is set at £500,000. This has remained the same since the Scheme was first set up in 1996. Accounting for inflation, £500,000 in 1996 is equivalent to £892,264.28 in 2017, though the maximum award has not been adjusted to reflect this.

I have flagged this concern with ministers and although this consultation does not touch on the indexation of awards, this important point still needs to be made.

It is difficult to understand who and how many victims will be affected by the proposed changes in Section 4 of the report. I note the authors of the report make clear any changes will be cost neutral, indicating there will be those who gain and those who lose.

However, on a wider issue, I am in favour of measures that simplify the scheme and make it more clearly understood by those claiming. This was a central theme of CWR.

For example, more than half of victims that responded to the survey conducted by the researchers for CWR found it difficult to understand whether they were eligible for criminal injuries compensation (56%), whereas a third (35%) found this easy. Of those who had been informed that they would be awarded compensation, just over half (55%) felt they understood the reasons why they had been awarded the amount of compensation they were given very well or quite well. However, approximately 2 in 5 (38%) felt that they did not understand these reasons.

The report also refers to the complexity of the process leading to delays in claims being processed and the number of times decisions are successfully challenged by legal representatives.

Therefore, I welcome any attempts to simplify the tariffs and make them more easily understood by victims and those who submit claims on their behalf.

I also welcome the proposed modifications to the description of injuries, removing overly complex medical language and removing insensitive descriptions such as “minor injuries”.

I support treating children the same as adults when it comes to making payments in respect of sexual violence. As stated above, keeping it as simple as possible is usually a good idea.

Bereavement Payments

I support the use of the term “bereavement payment” as it is a better reflection of the payment’s purpose. I also support the proposal to have a single rate payment for bereavement awards as another step in simplifying the award structure and speeding up the assessment process.

CWR raises valid concerns about the fact bereavement payments maybe withheld or reduced on the grounds of conduct or the character of the deceased. A decision of this nature can have a devastating impact on the family of the deceased and Baroness Newlove argued that it was wrong to penalise those who were suffering grief and trauma on the grounds of perceived shortcomings of their loved one.

Paragraph 182 gives an example of where the conduct of the deceased could lead to a refusal or reduction in an award, for example, if the deceased was identified as the instigator or aggressor. However, whatever the provocation, the starting point should be that they lost their life as a result of a crime being committed.

I have no issue with victims of non-fatal violent crime being penalised in this way if they were believed to have contributed in some way to the attack on them. Furthermore, given such victims would have been aware of the chain of events leading to the attack, they would be in a position to challenge the facts upon which a decision to reduce or withhold a payment was based.

On the other hand, all too often, bereaved family members are in no such position to challenge the decision makers as they did not witness the fatal attack.

One way forward, if the government has a concern that payments in certain cases might bring the scheme into disrepute, is to reflect on whether such payments be left to the discretion of the Tribunal, by analogy with decisionmaking on the impact of unspent convictions on personal applicants? I see the point that the bereaved are not responsible for the conduct of their lost loved one and are still bereaved, but I can also see some gross cases where the public would dislike an award of compensation to the family of a deceased who savagely attacked someone with a knife or a hammer and was killed by his victim in excessive self-defence.

A judge could sort out what was right in that situation in a way that no rules can. I hope the government will re-think its position on this issue.

Funeral payments

I support the ambition to make it as straight forward as possible for bereaved family members to be able to apply for funeral payments through the scheme. With this in mind, I support the proposal to move to a single payment of £4500.

I am concerned by the delays in refunding families for funeral expenses and recognise this can cause significant hardship at a time when families are already suffering the distress of bereavement.

The report sets out the difficulties which all too often result in these delays and I am unable to offer a solution. Instinctively, I would prefer an option where the CICA can pay funeral directors directly and wonder whether it might be possible for CICA to meet with representatives of the undertaker sector to discuss a standard process for submitting their invoices directly to CICA.

Loss of earnings payments

The 2012 statutory provisions substantially restricted the scope to claim loss of earnings and I am concerned it has gone too far. The numbers of potential claimants are relatively small and are described as having “catastrophic and life-changing injuries”. I believe the public would expect any compensation scheme to show exceptional compassion in such circumstances. If payments are capped at the level of statutory sick pay, they will have little impact upon the recipient, particularly those who have no or very limited capacity to work.

I would like to see this issue being given further consideration.

Court ordered compensation

I am concerned that the CICA is required to take into account the whole award of compensation ordered by the criminal court from the offender even when the court, and not the victim, is the only means of enforcing the order.

I am only too aware that HMCTS track record in pursuing these awards from offenders is poor and many victims can spend years waiting to be paid in full. In effect, we are in a position where the state is imposing a deduction on victims for court-ordered compensation that the state knows they haven’t received, and in many cases, are unlikely to do so.

Victims should not be out of pocket as a result of the failures of court ordered compensation. At the point at which an award is made by CICA, I would prefer to see whatever payment of court ordered compensation received by the victim being deducted from the award, and any future instalments being paid by HMCTS to CICA. This avoids victims being out of pocket and places the onus on HMCTS to recover the balance and refund CICA.

Use of Trusts to manage awards

CWR recommended the Ministry of Justice reviewed the management of trusts in cases where the person lacked the capacity to manage the funds themselves or where the perpetrator might benefit from the funds. I also believe these trusts must be managed with sensitivity and care and can understand why some of the examples referred to in CWR caused Baroness Newlove concern.

This report sets out when a trust is appropriate but goes no further. The operation of these trusts should be subject to periodic review. Where the beneficiary of a trust has a grievance about the management of the trust, there also needs to be an independent arbitration process so that the grievance can be independently reviewed.

I would like this issue to be given further consideration.

Hardship Funds

The Hardship Fund was set up to provide assistance to those victims who are on low paid. There is virtually no public awareness of the fund and it can be no surprise that so few victims have claimed from it.

One of the main issues of concern is that only one service provider, the charity Victim Support, is able to refer victims to the fund. In those parts of England and Wales where other providers are responsible for the provision of local victim services, it means the they cannot be referred. As such, ability to benefit from the fund is truly a postcode lottery.

It is important all victim hubs, whichever organisation is commissioned to run them, should be able to refer victims to the fund. Furthermore, it should be open to victims to be able to apply directly to the fund if they believe they meet the criteria. We should be empowering victims and not making them dependent upon service providers to decide whether to make a referral.

I also want to see Ministry of Justice run a campaign to raise awareness of the fund, so that practitioners in all parts of the criminal justice system know of its existence and can point potentially eligible victims to it. For example, it is particularly important police officers are aware of it.

Operational Improvements

The consultation states that the performance of the CICA is out of scope as it is an independent agency. Nevertheless, the CICA is dependent on the MoJ for its funding and can only operate within the resources allocated to it. As set out above, I welcome the initiative to provide certain groups of victims with a single point of contact or named caseworker. This was an important recommendation in CWR as it personalises the service and avoids victims constantly having to repeat their stories.

In my meetings with the CEO of CICA, I have been told this way of operating is working well and is popular with both staff and victims. For example, staff can contact the applicants by their preferred method of contact, to seek additional information and secure a broader base of evidence for determining the claim.

Given that all victims eligible for claiming compensation have been subjected to the most serious sexual and violent offending or area bereaved as a result of it, it is likely that a high proportion will have experienced trauma. Therefore, consideration should be given to extending the offer of a single point of contact to all applicants and not just selected groups. For this to happen, the additional staffing requirement would have to be funded by MoJ. It would be a small price to pay for transforming the compensation scheme into a more personalised and supportive service, helping victims to cope and recover.

I accept this way of working will need to be reliably evaluated, but it is already becoming clear that there were clear benefits, both for the victims and those assessing claims.

Baroness Newlove’s report highlighted the need to de-traumatise the application process and specifically referred to impact upon victims of having to set out a full account of what happened to them. This particularly applied to victims of sexual assault. Some victims were either put off from making a claim or felt compelled to instruct a solicitor to avoid the trauma.

The CEO and I have discussed whether such an account is necessary, given that CICA always seek a copy of the police report and the victim’s statement to the police. The CEO agreed to pilot this suggestion to see whether it was feasible and would not lengthen the overall time it took to process some claims.

Two hundred cases were tested in the pilot and the new way of working, where victims of sexual crime were not required to explain the crime. The pilot was a success and in future victims of sexual crime will no longer be asked to set out in their own words what had happened to them. Instead, CICA would rely solely on the evidence contained in the police reports. This is a significant development in de-traumatising the claims process and I would like to see this extended, potentially to all victims who are eligible to apply.

Support for Victims Claiming Compensation

This review has looked at the operation of the criminal injuries compensation scheme but has missed out a key element. How accessible is the application process to the most vulnerable of victims and those suffering from trauma?

Baroness Newlove’s report found that there was no consistent support package across the country which was available to victims applying for criminal injuries compensation. Each Police and Crime Commissioner adopted a different approach, with some offering no support and at least two offering comprehensive advice and support.

This variation or postcode lottery was exacerbated by a legal challenge in 2017. A victim successfully sued Victim Support Scotland for £100,000 in damages, claiming he had missed out on tens of thousands of pounds in compensation because of the advice the charity had given him. This case has had a significant impact on the availability of support for victims applying for criminal injuries across Scotland, England and Wales. Victims Support and other charities have stopped giving advice and support (other than emotional support) to victims applying for criminal injuries compensation. Since that time, other charities had also withdrawn their support as well.

Between April 2016 to December 2018, on average 39 per cent of victims were represented by a third party, although it is not possible to determine which of those applicants are represented by legal representatives, charities or family and friends.

The lack of accessible free advice, guidance and representation from the charitable sector and local victim hubs is likely to leave vulnerable victims with no option but to seek paid legal advice and representation when applying for criminal injuries compensation.

Victims who took part in the online CWR survey chose several reasons for using legal representation. The most common reason was that they were too traumatised to complete the application themselves and that the application process seemed too difficult.

Similarly, the capacity of some victims, for example those with mental health injuries or brain injuries may be limited.

The current system, as well as being inconsistent across England and Wales, clearly discriminates against those victims who are vulnerable. If they wish to pursue a claim, many feel compelled to instruct solicitors, and as a result, they will lose 25-30% of any subsequent award to legal fees.

In practice, it means the most vulnerable will receive the least and this cannot be fair or equitable.

We need to consider how we can put this right. It might mean looking at those parts of the country where victims are being given some access to free legal support (Northumbria and Cambridgeshire for example). As the former PCC for Northumbria, I am well aware of how we were able to deliver this service. We paid the Newcastle law centre to help people with criminal injuries compensation applications. Where there are law centres, they can be put on retainer and paid on piece work. This can be much cheaper than using private practice firms and, in my opinion, it is the ideal model.

In areas where there are no law centres, there may be a requirement for Police and Crime Commissioners to cover the legal fees of those victims they assess as unable to make the application without assistance, with the additional cost being borne by the MoJ.

I would like to see the Ministry of Justice and the Association of Police and Crime Commissioners jointly look at options for addressing this important deficiency and would be happy to attend and possibly chair such a meeting.

Conclusion

In conclusion, there is much to be welcomed from this review, but in other areas, I feel the government must re-think its approach.

There is one overriding theme throughout Baroness Newlove’s report and these submissions, that criminal injuries compensation must always been seen as part and parcel of the government’s strategy to help victims to cope and recover from the crimes committed against them. It is not a transactional service and we must at all times be aware that many of those who make an application will be suffering severe trauma, grief or life changing injuries. The service we provide and the rules that underpin it must be mindful of this at all times.

In line with my usual practice, a copy of this letter is being placed on my

website.

Yours sincerely

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

Letter

The Coroners’ Service

It has just been brought to our attention that the Justice Select Committee is taking evidence on how well the coroner system operates and if enough progress has been made since government reforms in 2009.

We apologise for the late submission of this letter which we would ask to be admitted to the Committee’s considerations on this important issue.

We are the Victims Commissioner for England and Wales, Dame Vera Baird QC and Right Reverend Sir James Jones, formerly Bishop of Liverpool who led the Hillsborough Independent Panel and is the author of the report ‘The patronising disposition of unaccountable power’ setting out the experiences of how the authorities treated the victims and families of the Hillsborough Disaster. Together we are working to devise and promote a system to assure non means tested legal advice and representation, where it is required by the families of deceased people who are the subject of an Inquest in which a public authority is an interested party.

We have read your call for evidence and believe that the need to assure public funded advice and representation in these cases falls within the remit of the following issues under consideration within your review:

• The Coroners Service’s capacity to deal properly with multiple deaths in public disasters
• Improvements in services for the bereaved
• Fairness in the Coroners system

As Victims’ Commissioner for England and Wales, Dame Vera Baird QC has statutory duties which require her to “promote the interests of victims and witnesses” and “take such steps as she considers appropriate with a view to encouraging good practice in the treatment of victims and witnesses”. Whilst the attention of the Victims Commissioner is therefore required to this issue due to those duties, there is clearly an argument, by analogy, to anyone whose close family member 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 some of these cases it may not be known whether criminality is involved or, as with Hillsborough, not known for many years. 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 death may have taken place in a mental health setting, in police or immigration custody or in prison. In other circumstances the death may have taken place where the role or responsibilities of public authorities are relevant to exploring how the death happened. The authorities may be interested persons in the inquest. The Victims’ Commissioner thus supports Bishop James in seeking public-funded legal advice and representation for all families.

We make clear at the start that we are aware that the Government has conducted a Review of Legal Aid for Inquests and, in its final report in February 2019 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’ .

We have to accept the decision not to introduce legal aid as set out above but we intend to argue for another fair system for the provision of public-funded legal advice and representation for bereaved families. We are unaware of the progress of the government’s investigation of ‘further options’, although 18 months has passed since the report. We would invite the Committee in course of this inquiry to seek to ascertain what has happened to that intention.

Arguments for the right to free representation

Although inquests are intended to be inquisitorial not adversarial in concept, they become an arena where the accountability of the public body in question is tested. State bodies instruct legal teams and are unrestricted in the rates and quantum of funding and the level of representation. This is important as 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. By giving families the status of interested party, it is recognising them as participants, not merely onlookers.

There is no disrespect in our purpose to the role of coroner, but, however skilled and committed, it is not possible for a Coroner to enter into the in depth understanding of the facts and concerns of a family in the way that a lawyer may do, whose sole interest is to represent that family.

Reiterating that these are not adversarial proceedings and the coroner may ask questions on behalf of the family, a reason often offered to justify this position, is to isolate those who have suffered most, uniquely from the ability to be equipped to find out to their satisfaction and with their input what happened on their loved one and have their questions answered.

Families do not have automatic access to legal aid or other legal funding. Some “Article 2” inquests are more likely to be subject to legal aid funding for families either 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 A2 inquest and many Inquests involve public bodies and the deaths are a significant cause of concern and of questions, yet those closest to the victim and who have suffered life-changing loss will not be legally aided and will not be able to afford to be represented.

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

The Victims Commissioner is committed 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 a paper from the Victims’ Commissioner: “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.

In their public paper in February 2019, the charity INQUEST lists the official reports since Lord Macpherson’s in 1999 which have called for review or changes to the position for 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 that 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.

Our approach

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 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 address and ‘ a level playing field “to be provided and the human rights concept of “equality of arms” to be made available.

Bishop James’ Report on the experience of the Hillsborough bereaved families included two points of learning covering this issue. One was 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 other 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.

We also believe that 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 of the public purse. In his report, Bishop James 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.

Working with the charity INQUEST and others, we intend to explore all options for funding legal advice and representation and how it might be administered. We are not reopening the legal aid argument. We propose the establishment of a separate and specific fund, undoubtedly with its own criteria. It might possibly be retained and administered by the Ministry of Justice. Considerations that we currently have in hand include, following the fund’s establishment, to require contributions to it 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. This is a question of ensuring fairness for the proceedings and to those who they, as public servants exist to serve, not a question of making those at fault pay. We would therefore envisage that in an inquest where several public authorities are represented they will all contribute and that any contribution would be proportionate but not linked to any finding of fault implicit or express in the inquests conclusions. We emphasise that this is work in progress and the simple establishment of a specific fund without this element of ‘clawback’ may as accurately fit the need.

We will continue to explore options to offer to government for restricting the amount spent by public authorities in protecting their interests and reputations and we will also examine possible mechanism for requiring a levy on public authorities in this position to fund legal representation for bereaved families at the same level and quality as their own. By approaching them matter in that dual way, we would hope to minimise the extra cost of Inquest funding or families from the exchequer.

On timing, the Government is fully committed to responding to Bishop James’ Report once the remaining Hillsborough trials are completed. They are expected sometime in the New Year. There is good reason accordingly to take forward the work across departments suggested in the Ministry of Justice’s Final Report so that it can inform the Government’s response to Bishop James’ Report.

We seek the Committee’s support that departments should be convened, initially at official level, to explore the proposal and to commission the work on costs/ departmental funding of the Scheme/ rates and logistics. Ministers should clearly be consulted.

We would be pleased to discuss this further with the committee and would welcome the Committee’s views on this matter.

Dame Vera Baird QC, Victims’ Commissioner – England and Wales, and Right Reverend Sir James Jones, Author: Patronising Disposition of Unaccountable Power

Outline of possible proposal for consideration across government departments

A possible way forward is to consider a ‘ Legal Funding Transfer Payment Scheme. Such a scheme could draw upon some elements of the Hillsborough Families Legal Representation Scheme (see attached background note). It could for example allow, where necessary, for funding for pathology or other expert evidence to be available, as recommended by Bishop James. But it need not follow all aspects of the Hillsborough Scheme. It could incorporate legal aid rates, and:

• would guarantee legal funding for bereaved families immediately following a death where a state authority is involved (as described above). The legal funding would carry through the inquest where the inquest is contested by the relevant public body;
• would be non means tested;
• the cost of the Scheme would be met by the relevant department. For example, the Hillsborough Scheme was funded by the Home Office, DHSC (as it now is) and the MoJ. These departments would be relevant to the proposed Scheme because the cases would include deaths in police custody, mental health trusts and prisons. But the range of Departments might be wider. For example, Bishop James referenced the Ministry of Defence;
• the Legal Aid Agency might provide professional advice (as with the Hillsborough Scheme); and
• A mechanism might be arranged to levy public authorities who are represented at inquests where families require advice and representation to contribute to the fund.

Summary of the Hillsborough families legal representation scheme

Theresa May, when Home Secretary, met the Hillsborough families after the Hillsborough Independent Panel concluded in September 2012, but before the Attorney General’s successful application to the High Court in December to quash the original inquests. She made a commitment to the families that the government would fund the families’ legal representation at any fresh inquests, that this would be proper representation and not means-tested. After the High Court Hearing, the Home Office set up a Hillsborough Families Legal Representation Scheme, ‘the Scheme’. The Department for Transport had established a dedicated scheme for the seven bereaved families of the 2002 Potters Bar rail disaster, the inquest was held in 2010.

The then Justice Secretary agreed that the Legal Aid Agency (LAA) would provide the Home Office with professional advice. Whilst the Home Office was the largest funder, the Ministry of Justice, plus the Department of Health and the Department of Culture Media and Sport also contributed, given their respective responsibilities for inquests, health services and sports grounds. The inquests were projected to last between 6 and 9 months, on opening the coroner projected a year, in fact they lasted 25 months.

There were 96 deceased at the Hillsborough disaster, allowing for split families just over 100 families were granted interested persons status and legally represented. The vast majority of families were represented by two firms of solicitors, although the scheme embraced six firms in total. Under the terms of the Scheme, all firms were required to work together and to avoid unnecessary duplication ensuring cost effective use of public resources. To reflect irreconcilable historic differences between families they were represented by two teams of counsel at the inquests. Again, the two counsel teams were required to cooperate, avoid unnecessary duplication and make cost effective use of public resources. The Scheme ensured proper and comprehensive legal representation covering all aspects of proceedings. This included funded family experts, principally pathologists. It required that all families shared the same experts. The Scheme was a dedicated scheme and not a legal aid scheme. Each firm of solicitors was required to submit costed proposals and those of instructed counsel by way of detailed costed case plans in a set format. Proposals were carefully considered by the Home Office and the LAA. Case plans were reviewed on a regular basis and adjusted to reflect the status of the inquests and outstanding work. Spending peaked during the early stages of the inquests, reducing as phases were completed.

Lawyers submitted a separate, costed experts schedule. Family experts played a vital role in the inquests. The coroner’s experts vigorously maintained the position set out by pathologists at the original inquests, i.e. upholding the 3:15pm cut-off that nothing could have been done to save the deceased supporters following that cut-off. Family experts equally vigorously argued the position put forward by the Hillsborough Independent Panel, i.e. had there been a more effective response by the police and ambulance service, a number of the 96 could have been saved. The coroner directed that the jury should not have to decide between his and the family experts and that they should therefore agree. During these discussions, the Scheme continued to fund the family experts. It would have been easy not to have done so. As a result, the family position was agreed and put to the jury.

This had a significant impact on the final conclusions.

Dear Vera,

Thank you for your letter of 14 August regarding your concerns about an increase in antisocial behaviour (ASB) during the COVID-19 lockdown.

I can assure you that I share your concerns regarding the serious impact that persistent anti-social behaviour can have on both individuals and communities, and that the Government is committed to ensuring victims of ASB get the response they deserve.

I am pleased to see that the latest CSEW statistics show a continued fall in ASB incidents (up to March), but I recognise that we must not be complacent, particularly in these unusual times. We have met regularly with the ASB National Policing Lead’s staff officer, the ASB lead in the Local Government Association and MHCLG during the pandemic. The issue of potential rises in ASB as a result of lockdown have been raised in these meetings, often related to concerns about breaches of lockdown and social-distancing measures and we continue to monitor this closely as these measures ease.

I agree that it is vital that victims have their voices heard and, as you are aware, the Anti-social Behaviour, Crime and Policing Act 2014 introduced specific measures designed to give both them and their communities a say in the way that complaints of anti-social behaviour are dealt with. This includes the Community Trigger, which gives victims of persistent anti-social behaviour the ability to demand a formal case review, where a locally defined threshold is met, in order to determine whether there is further action which can be taken. I would also note that under the 2014 Act, relevant bodies must publish information about the Community Trigger, including their current review procedures and the number of applications received and reviews held.

I understand that it was agreed at the ASB Strategic Board in October 2019, which you attended, that more action was needed to raise awareness of the Community Trigger amongst communities, local authorities, PCCs and law enforcement, and we continue to work with the Board in order to do so. The Home Office have recently refreshed the ASB webpages on GOV.uk to make information on ASB and the Community Trigger more easily accessible: https://www.gov.uk/government/publications/anti-social-behaviour-crime-and-policing-bill-antisocial-behaviour. This includes creating a new page with key information on the process and requirements of the Community Trigger: https://www.gov.uk/guidance/anti-social-behaviour-asbcase-review-also-known-as-the-community-trigger. The Minister for Safeguarding has also written out to all MPs to raise awareness of the ASB powers available to their local areas.

These awareness raising activities are intended to provide a starting point to address the issues you have previously raised. The Government will monitor their effectiveness and then consider whether any further action is required. Progress can be discussed at the next ASB Strategic Board, which should be taking place in the Autumn.

In the meantime, I understand that you will be meeting with my officials next month to discuss your proposals in further detail and I look forward to hearing the outcomes of that meeting.

Thank you, once again, for taking the time to write to me.

Rt Hon Priti Patel MP

Dear Home Secretary

We are writing to you to ask that you take immediate action to deal with a surge of anti-social behaviour triggered by the Covid-19 lockdown.

Anti-social behaviour devastates the lives of victims and communities. It is not low-level and is often a precursor to more serious crime – such as knife crime and gang violence.

The effects of ongoing, persistent, distressing anti-social behaviour cannot be overstated.

Research from a YouGov poll from March this year showed that even before lockdown, 61% of people felt than more needed to be done to tackle antisocial behaviour in their local area, with 39% of people saying the problem had increased in their area over the past three years.

The feedback from victims is that all too often, they feel they are being constantly targeted by perpetrators; and yet persistently ignored by those with the power to prevent and intervene.

Police forces and councils are struggling to cope with the volume of complaints and this means victims are suffering as they are not receiving the support they deserve.

There has been a huge spike in cases of anti-social behaviour since lockdown.

The plight of so many victims could so easily have been avoided had the short-comings in the handling anti-social behaviour been tackled previously.

On 29 April 2019 – over a year ago – Baroness Newlove, published the report “Living a Nightmare” in her last act before stepping down as Victims’ Commissioner.

The report highlighted systemic failures in handling anti-social behaviour and called on the Government to reform the way that cases are dealt with so that victims are given a voice and can challenge authorities who fail to act.

Without these urgent reforms, victims continue to suffer in silence and there is no authority responsible for providing redress or respite.

Sixteen months later, we are disappointed to see that, with one exception, none of her recommendations have been acted upon. This is despite the strenuous efforts from the current Victims’ Commissioner, Dame Vera Baird.

Victims still do not have a voice and in many parts of the country, the Community Trigger process – which is supposed to allow the public to challenge how their complaints of anti-social behaviour have been dealt with – is simply not fit for purpose.

We are calling on the Government to provide leadership and use this situation as an opportunity to put in places measures to combat anti-social behaviour effectively, not just in response to Covid-19, but for the future.

We want you to send a clear message to the public that anti-social behaviour will no longer be ignored.

As a first step, we want to see existing Community Safety Partnerships encouraged to set up special “Nightingale taskforces” to quantify and tackle the backlog of anti-social behaviour complaints.

This will only happen if Government is prepared to offer the resources and provide guidance on a standardised way of working for the future.

These taskforces must incorporate practitioners and legal teams who have knowledge and expertise to use the array of existing statutory measures already available to keep people safe. Taskforces must include representatives from mental health services and should be held accountable to victims where no meaningful resolution to the anti-social behaviour is provided.

At the same time, we are calling on the Home Office to immediately and fully implement the key recommendations in “Living a Nightmare”, including:

• Recognition of the impact of persistent ASB on victims, by affording them the same rights to support as all other crime victims, when they reach the ‘three complaints’ threshold needed to activate the Community Trigger.
• Involving victims by giving them the right to attend resolution meetings to explain in person the impact the behaviour is having on them.
• Making resolution meetings a real opportunity to challenge officials by having them chaired by an independent person.
• Making a legal requirement for Local Authorities, Police and Crime Commissioners, Police and housing associations to display accurate guidelines on the Community Trigger prominently on their websites and notice boards and publications.
• Considering replicating legal powers available to police in Scotland who can serve warnings, fines and seize noisy equipment.

For too long, authorities have underestimated the impact of anti-social behaviour on its victims. And all too often they have failed to tackle it effectively.

The Anti-Social Behaviour Crime and Policing Act 2014 was meant to empower victims and ensure swift and effective action. This has not materialised.

The advent of COVID-19 has brought this into sharp focus, with lockdown and social distancing giving perpetrators of anti-social behaviour easy targets, particularly the vulnerable.

This is an opportunity to send a clear signal to those who bring so much distress to their neighbourhoods that their behaviour will no longer be tolerated.

It is an opportunity to make sure the victim’s voice will always be heard and that local agencies who fail to respond are held to account.

It is time to act. We, the signatories of this letter are requesting the opportunity to meet with you and share our concerns and to hear how you plan to proceed.

Yours sincerely

Dame Vera Baird QC, Victims’ Commissioner for England and Wales; Baroness Newlove, Victims’ Commissioner 2013-19; Rebecca Brown, CEO, ASB Help; Rebecca Bryant OBE, Chief Executive, Resolve UK

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Overview

In the first phase of her review into the provision of Special Measures – which are measures designed to help victims and witnesses to give the best quality evidence they can – Dame Vera has published a literature review of existing research into this issue.

The review, which was conducted by Dr Samantha Fairclough from Birmingham Law School, found:

• There is limited available research regarding this issue, what there is focuses almost exclusively on trials in the Crown Court, with a distinct lack of information on trials of less serious offences in the magistrates’ courts, including the youth court.
• There appears to be a prevailing view among criminal practitioners, and some witnesses, that evidence given by video link has less of an impact on jurors and is therefore avoided. This is despite any empirical evidence which supports this view.
• Evidence that defence witnesses can be less well supported than prosecution witnesses, despite being equally eligible for special measures.
• A survey of victims and witnesses in 2010 found that 92% of those whose evidence-in-chief was pre-recorded, 89% of those who used a live link and 85% of those using a screen found these measures helpful.

Dr Fairclough’s review will be followed by a detailed examination of special measures and their provision which will be conducted by Dame Vera’s own research team and will be published in autumn 2020.

Commenting on the launch, Dame Vera said: “Victims should be at the centre of the criminal justice system, but they can often feel like they are an afterthought or mere bystanders.

“I hear many examples of issues with the provision of special measures – just recently I was made aware of a situation where a rape victim was denied access to screens and had to come face to face with the person on trial for attacking her – which just gives you an idea of the kind of treatment some people are being exposed to.

“And it is sometimes the case that victims and witnesses are assured that special measures will be available for them only to arrive at court to find they are not adding to the stress and trauma of the experience.

“That is why I am so determined to have a thorough examination of this issue so I can identify why things are not working the way they should, and what needs to be done to ensure victims are given support and protections they deserve and are entitled to in law.”

The next phase is a programme of research with frontline staff involved in identifying the need for special measures and providing these, as well as research with vulnerable victims themselves.

Dame Vera continued: “Giving evidence to a court can be a worrying and, for some, traumatising experience. Special Measures were introduced to help make this process easier. They are not a ‘nice to have’ they are a legal entitlement.

“This piece of work is extremely important and will hopefully lead to a much better experience for witnesses and victims which is crucial,” she concluded.

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Overview

The first Annual Report from Dame Vera Baird QC covers the period from April 2019 to March 2020.

This Report includes:

•  details of how the VC has been working with and supporting victims during the Coronavirus pandemic;
•  examining the Domestic Abuse Bill currently making its way through parliament;
•  what should be included in the up-coming Victims’ Law; and
•  a call for increased support for the families of victims at inquests.

To read the news story about the report click here.

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Overview

This bulletin presents trends in victims’ experience of the criminal justice system from the year ending March 2015 to the year ending March 2019.

The bulletin includes statistical data from the Crime Survey for England and Wales about victims’ experience of victims’ services, restorative justice, and information, advice & support.

The bulletin was prepared with ONS Crime Survey for England and Wales microdata accessed through the ONS Secure Research Service.

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Overview

This report explores the overlap between children’s experience of domestic abuse and children’s offending behaviour and makes recommendations for early intervention and consistent practice.

This review is published in the midst of the Coronavirus pandemic lockdown, with everyone subject to measures designed to contain the spread of the virus. But these measures present an unprecedented risk for victims of domestic abuse, who are compelled to stay within a home shared with an abusive partner.

The findings of this report suggest this should not be regarded as a short-term problem; children who are exposed to domestic abuse are not casual bystanders and the evidence suggests impacts will be huge and far reaching.

Before the coronavirus, the criminal justice system was focused on dealing with another virus, again afflicting all parts of our society: a surge in gang related crime, appalling violence inflicted by children onto other children through knife crime, as well as so called “county lines” dealing in drugs, with children pulled into dangerous criminal activity.

Dame Vera says:

“My review finds there is an overlap between children’s experience of domestic abuse and children’s offending behaviour. A quarter of children who were identified as having socially unacceptable behaviour also have identified concerns about domestic abuse of a parent or carer. Practitioners who support children out of gang related activity tell us the children and young people they work with commonly come from backgrounds of domestic abuse.”

The review finds children who experience domestic abuse may seek alternative relationships outside of the home, leaving them vulnerable to sexual and criminal exploitation. Children in alternative school provision, those in unregulated care homes and children sent far from home are also particularly vulnerable.

The criminal justice response to child criminal exploitation is inconsistent, with different police forces taking different approaches. Children who are victims of criminal exploitation through county lines drug dealing may be seen as offenders rather than victims, depending on which police officer or police force they encounter.

Early intervention to identify and support children and young people who experience domestic abuse is crucial. Thresholds for intervention are currently so high that things have to be “really serious” before children’s services intervene.

“I am calling for children who experience domestic abuse to be recognised in statute as victims of crime. I want to see targeted interventions and support to help these children and young people recover from domestic abuse. Children must not be made more vulnerable to exploitation by sending them far away from their homes and support networks when taken into care.

Therefore, I am calling for all care homes to be regulated, including those for young people aged 16 who can be just as vulnerable and susceptible to exploitation as those under 16. I am also calling for a more comprehensive strategy for children as victims of criminal exploitation, serious violence and organised criminal groups.

The coronavirus pandemic could lead to a substantial rise in the number of children and young people who experience domestic abuse. The domestic abuse they are experiencing today could, act as one of the factors influencing their experience of offending behaviour such as serious youth violence and criminal exploitation in the future.

One social work practitioner told researchers: “By not dealing with things at the outset for children of domestic abuse, you are sowing the seeds for the end result of violence amongst children that we are getting.”

Dame Vera Baird says:

“I hope that instead of sowing the seeds of violence, we can sow the seeds for a brighter future for our children and young people.”