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A vision for victims – participants, not bystanders

How have we got to the position where victims find their treatment by the criminal justice system to be worse than the crime itself? We urgently need an entire change of culture in how the justice system sees, hears and helps victims.

This article was first featured in Dame Vera Baird’s 2021/22 Annual Report, published on 21 June 2021.

The criminal justice system is fundamental to the very relationship between the state and its citizens. It is the source of redress and punishment and it is at the heart of our ‘social contract’. Citizens expect that the justice system will offer them protection from crime – and due remedy if a crime is committed. Yet for victims of crime, this social contract is breaking down, with faith in the justice system in sharp decline. A radical shift is required; we urgently need a change of culture in our justice system. The landmark Victims’ Bill presents us with just the right vehicle to restore victim confidence and deliver true victims’ rights. I urge the government to seize the moment.

The reluctant participant

Victims are inevitably – and by their very nature – reluctant participants in the criminal justice system. But it is their very participation in the justice system that is central to prosecuting criminals and tackling crime. Put simply, the criminal justice system ceases to function without the involvement of victims.

Yet all too often, victims are treated as nothing more than an afterthought by our justice system – a bystander to proceedings, rather than the valued and necessary participants that they are. As a result, many would rather sacrifice their chance at justice than risk being further victimised by our justice system.

It’s time for our justice agencies to finally grasp that justice cannot be delivered without victims. The involvement and contribution of victims deserve special status and recognition. I’m calling for a redefinition and reconceptualisation of the role of the victim in our criminal justice system. One that moves beyond treating victims as simply an onlooker or maybe a witness. We need a cultural shift that sees the victim as a recognised, valued and active ‘participant’ within our justice system, with a formal, recognised ‘participant’ status – and guaranteed victims’ rights that flow from that status.

What do victims need?

All victims are affected by crime. Sometimes they are profoundly impacted. Many victims of crime will have suffered a serious injury, an intrusive burglary, sexual assault or the death of a loved one. They are intimately involved from the day of the offence through the process and often beyond.

So, what do victims need from the criminal justice system in response to crime? Often, we hear the rhetoric that victims are “at the heart” of the criminal justice system. It is true that victims do need to be centred within the justice system. But in a very different way. At its core, it’s very simple: it is about decent treatment, process and procedural justice. It’s about being seen, heard and helped.

Procedural justice is based on four central principles: treating people with dignity and respect, giving citizens a voice during encounters, being neutral in decision-making, and conveying trustworthy motives. If people perceive they are being treated fairly and decently by authority figures, they are more likely to be satisfied with the outcome.

We know, for example, that victims place at least as much and sometimes more value on procedural justice and decent treatment than on the perpetrator being convicted or sent to prison. But these victim needs are, in effect, side-lined by our justice system, which centres on the state and the defendant.

As my 2021 Victim Survey showed, victims want to be treated with fairness and respect by police, for the crime to be investigated, and to be kept informed of the progress of their case. These are hardly arduous asks, but all too often our justice agencies are found wanting. Victims simply want and need good and fair treatment. It’s time we delivered.

A victim of the process as well as the crime

Victims are seen as temporary and marginal to criminal justice proceedings – at best ‘witness fodder’, as the academic Paul Rock once said. Crimes are seen as an attack on the state – and not against the victim. So, proceedings are not there to put right the victim’s wrong but to enable the state to inflict punishment and affirm the rule of law. The defendant is at the centre of the court process. The prosecution prosecutes them, the defence defends, the jury determines guilt and the judge ensures their trial is lawful and fair. All the criminal justice agencies are shaped by this focus on the defendant. It’s easy to see how the victim – the ‘witness fodder’ – gets lost in our adversarial system between the state and defendant.

The centrality of the defendant is totally correct and must be defended. Indeed, nothing should detract from the importance of the defendant’s right to a fair trial. But it is possible for us to effectively put a fence round the defendant’s rights while also improving the role of the victim and witnesses.

Elevating rights from favours to requirements

The Victims’ Code sets out the supposed minimum standard of service that victims should be able to expect, from the moment they report a crime to the end of the trial. However, victims tell me time and again that their treatment falls below this standard.

Rights within the Code include help to understand the process, updates on their case, respectful treatment, procedural justice and support as and when it is needed. They help victims to recover from victimhood and to restore their confidence in a society which has, after all, failed to protect them from crime in the first place. But of the tens of thousands of victims who enter the criminal justice system each year, only a fraction (23% in 2019/20) have even heard of the Victims’ Code – a figure that has hardly changed year-on-year since the original legislation in 2006.

This is perhaps no surprise, as these ‘rights’ have no legal force. In effect, the Victims’ Code is little more than a wish list for most victims going through the justice system. There is no mechanism to hold agencies to account for their delivery of these services. Rather, they are treated as optional extras or ‘nice to haves’ instead of a core part of delivering justice.

The new Victims’ Law must make it clear that we can no longer tolerate a position where the vast majority of victims do not get their full and rightful entitlements and are left without the help they need to cope and recover.

These entitlements must be enshrined in legislation, with victims accorded rights that are backed up by law.

The Victims’ Law is an opportunity to finally elevate the status of victims, so that they are seen, heard and helped. In formalising a new, positive and constructive victim ‘participant’ status, with according rights that flow from that status, police, prosecutors and courts would be forced to appreciate the importance of delivering victim rights – and fully conscious of any consequences in law should they fail to do so.

The triangulation of interests

The victim participant status I propose is not new. It is tested and in operation in other common law jurisdictions around the world.

My 2020 report, The role and rights of victims of crime in adversarial criminal justice systems, found that victims continue to feel marginalised and peripheral to the criminal trial process in England and Wales. In contrast, the report authors cite the example of Victoria in Australia. The State of Victoria moved legally to recognise the victim as a participant in 2018. It is thereby acknowledged in law that the victim has an ‘inherent interest’ in the response by the criminal justice system and agencies are required to respect the rights and entitlements of victims as participants in proceedings.

The 2015 Victoria Law Reform Commission said: “…the role of the victim should be conceptualised, understood and implemented in accordance with modern jurisprudence. In the modern trial, there is a triangulation of interests: those of the public, the accused and the victim. Within that triangulation, the interest of the victim in the criminal trial is not that of a party; but it is that of a participant.”

In other words, the state redefined the role of bystander to that of participant – with a view to better practical treatment. The default position would be that they may participate in all parts of the criminal justice process, they have a right to be heard and the right to challenge where appropriate.

In our country, there is already legal recognition of the victim’s special interest in their case, requiring care to be taken of their rights. As the late Lord Steyn said in the House of Lords in 1999: “There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.”

Victims cannot be parties to proceedings. But the idea of triangulation recognises separately, in a proportionate way, that the victim has a special role which must be acknowledged and supported.

I believe the Victims’ Law is an opportunity for the government to give victims a distinct legal status within the criminal justice system, separate from that of the wider public. In doing so, there is recognition that they have suffered a wrong. Importantly, their ‘rights’ are elevated from favours, to be done where possible – and if resources allow – to an inherent requirement and core function of the system.

Lasting cultural change

Rather than feeling peripheral to the proceedings, victims must be properly supported so that they can participate at every step of the process. This means treating victims with dignity, offering timely and effective information sharing and all the aspects of procedural justice with which we are familiar. This has no impact at all on the defendant’s fair trial rights. It is the conceptual shift to seeing a victim, not as a bystander, nor an afterthought, but as an inevitable participant and thereby encouraging police, prosecutors and courts to appreciate why it is imperative to deliver their rights and with real consequences if they fail to do so.

I believe there is an urgent need for cultural change within our justice system. Victims need to be recognised as participants with an inherent and recognised interest in proceedings from the day of the crime and throughout the criminal justice process, entitled to rights that respect and support that role and help them personally towards recovery or restoration. The government has this once-in-a-generation chance to embolden victims and truly put them “at the heart of the justice system”, as they have long promised.

This article was first featured in Dame Vera Baird’s 2021/22 Annual Report, published on 21 June 2021.