The Victims’ Bill – an opportunity to revolutionise how victims are treated
In her 2021/22 Annual Report, Dame Vera Baird looks to the changes the Victims' Bill needs to usher in.
This article was first featured in Dame Vera Baird’s 2021/22 Annual Report, published on 21 June 2021.
In February 2022, I delivered my 98- page response to the government’s consultation, which outlined my key priorities for the Bill. Here I set out the key components I believe we need to transform the victim experience, to ensure criminal justice agencies see, hear and help victims.
A paradigm shift in victim treatment
Victims are intimately involved with the crime they have suffered throughout the criminal justice process and beyond it. How the criminal justice system treats victims will strongly influence their recovery. However, far too often, victims of crime feel let down by the process. Left without sufficient information, support or any voice in the process, many victims tell me that they are traumatised by their attempts to secure justice. This must change. The Victims’ Law must recognise victims as participants from the day of the crime to the outcome of any criminal proceedings with legal rights that flow from this status in all cases.
Rights, not favours
At the heart of the cultural shift for victims is that they must be provided with guaranteed rights and not just favours. The Code of Practice for Victims (commonly known as the Victims’ Code) seeks to deliver rights to victims and outline a minimum service standard. However, victims often tell me, and data we collect makes clear, that the Code is not being upheld. Furthermore, the Code itself is written in a way that shows that these are not rights but only favours – which will be delivered if and when it is practicable to the agencies involved.
The current Code does not do justice to victims. The Victims’ Law is an opportunity to overcome these problems. The Victims’ Code should be revised and rewritten so that it clearly states that it is setting out guaranteed core statutory rights that agencies must deliver. In other words, victims’ rights need to be deeply ingrained into the culture of the criminal justice system.
Expanding victims’ rights
There are many areas where the current rights offered to victims are insufficient and my consultation response outlines numerous areas where the Victims’ Law should redress this.
I argue for repeat victims of anti-social behaviour to be provided within Victims’ Code rights and that the Code should include expanded rights to restorative justice. Similarly, I argue for Victims’ Code rights to be applied to those bereaved by murder and manslaughter abroad insofar as is possible. Furthermore, I advocate for increased rights for victims of mentally disordered offenders and for bereaved families to access free legal representation and help for inquests.
There should also be a statutory right for victims to be given free legal representation in respect of demands made by police, prosecutors or courts that threaten their Article 8 Right to Privacy. This will mean, for example, that rape victims are given independent legal advice before handing over any personal data to the police and CPS. A pilot scheme saw data requests challenged in 47% of cases and reported increased complainant confidence in the process.
I have further argued to circumscribe what disclosure of third party material police and prosecutor’s should demand from victims, to bring in similar safeguards to those which we fought for and were contained within the Police, Crime, Sentencing and Courts Bill on downloading digital data.
Additionally, in order to ensure that some of the most vulnerable victims are protected, I have recommended that the Victims’ Law includes a non-discrimination clause to prevent victims who have insecure immigration status being treated not as victims of crime, but as ‘suspect’ immigrants first.
Taken together, this new suite of rights should provide victims with badly needed legal protection.
Duties, leadership, oversight and accountability
Any reforms require a mix of duties, leadership, oversight and accountability to deliver the desired change. The leaders of criminal justice agencies set the culture and direction of those agencies. Therefore, it is vital that they are supportive of these changes and committed to driving the cultural shift required to alter how victims are treated. My consultation response reiterates this point strongly.
I have also outlined a range of oversight and accountability mechanisms. It is crucial to ensure that the implementation and effectiveness of the Victims’ Code is measured and responded to. As such, I have recommended statutory data collection on code compliance at a local level, overseen by PCCs. This should be complemented by national oversight of this data and of the Code’s operation through the Victims’ Commissioner.
Victims should not have to wait until something has gone wrong, potentially severely impacting on them, and then just be able to complain. They should be able to resolve potential breaches whilst their case progresses. I have therefore recommended that PCCs have a local, independent Victims’ Champion, able to take on and use local contacts and the PCC’s influence to seek to rectify immediate failures to deliver Code rights. Our preference is for a Victims Champion, funded by the PCC but independent, like the model which is so effective in London, Durham and the West Midlands. But we acknowledge that PCCs will make their own choices about who should take on complaints of Code breaches and try actively to solve them.
This model would allow many victims to resolve problems during their case. Where issues are not resolved satisfactorily, the Parliamentary and Health Service Ombudsman (PHSO) should continue to investigate complaints, but the current requirement that victims can only complain to the PHSO via their MP must be removed. This new framework would provide victims with the best opportunity to resolve problems in real-time and offers an accessible complaints system.
We rely on inspectorates to deliver thorough, evidenced inspections of criminal justice agencies. Whilst the current inspectorates do consider victims, this focus should be strengthened. I recommend a new joint inspection regime for the Victims’ Code. This area-specific inspection will be able to give robust assessment of how the Code is being upheld across agencies, share good practice and require change where rights are not being delivered.
The role of the Victims’ Commissioner
The Victims’ Commissioner is an independent voice in place to represent the interests of victims and witnesses. As such, the Commissioner plays a central role in ensuring victims’ rights are upheld, sharing good practice and overseeing implementation of the Code.
My Office’s research into the Constitutional Powers of the Victims’ Commissioner pointed to a number of areas where the role should be given additional powers to deliver the interests of victims. These powers would enable the post to undertake effective review of the Victims’ Code, to review its operation and report to Parliament. As Victims’ Commissioner, I should also be able to propose amendments to the Victims’ Code where it is found to be inadequate, which the Ministry of Justice must consider.
My research function and powers to speak to victims should be strengthened, giving me the best possible voice to represent victims’ needs. I should also be empowered to independently publish my annual report to Parliament, rather than with the agreement of the Justice Secretary, as I do now.
The legislation should also place an obligation on agencies listed in the Code to co-operate with my research and reviews and to respond to my recommendations.
These new powers would create a powerful and independent voice for victims and witnesses that will further embed culture change and ensure that victims’ needs remain at the centre of criminal justice reforms.
Advocates
The Victims’ Bill consultation heavily focussed on the role of the advocate. Advocates deliver a valuable service to victims giving them practical support to help them cope and recover from a crime and, if a case goes to court, helping them to navigate the criminal justice system.
While Independent Domestic Violence Advocates (IDVAs) and Independent Sexual Violence Advocates (ISVAs) are well established, my Office’s research shows that there are advocate roles across a broader range of crime types. Advocates bring strong benefits to victims and I have called for specialist advocacy for all victims of serious crimes, such as violence, trafficking and other traumatising offences.
The government has asked for views on defining the advocate role as well as standards, accreditation and training.
I support a definition of advocate that will bring credibility and legitimacy to the role. However, it is essential that any definition is flexible enough to incorporate the diverse nature of these roles and encapsulates the extremely valuable role delivered within the ‘by and for’ sector. Furthermore, any definition, training or accreditation must be led by and co-designed with the expert services already in the sector who have established and grown these roles into the services they are today.
The advocate role must also be set in context. Advocates are one element of victim support services, which complement, but cannot replace other services such as counselling and outreach. Advocacy roles must be in addition to, not in replacement of, other victim support services.
Victim support services
It’s so important that the government gets the commissioning of victims’ services right, as this is the area that affects most victims. We know that the bulk of victims will never report the crime and do not interact with the justice system and this is especially true of minoritised communities. This legislation provides an exciting opportunity to review and reflect upon these vital services.
Support services must navigate a challenging environment with numerous commissioners, short-term funding arrangements and complex public services that their operations must integrate with. The Bill presents an opportunity to resolve many of these issues.
I strongly recommend duties on public bodies to commission community-based services for victims of domestic abuse and that the National Statement of Expectations is placed on a statutory footing.
I have also long advocated for longer-term sustainable funding and co-commissioning, which will place support services on a stronger footing. This will provide services with some certainty, rather than living hand to mouth, enabling them to invest in and develop services and secure staff.
We know that LGBT+, minoritised and disabled survivors are disproportionately affected by abuse but can face significant barriers to accessing support. Specialist ‘by and for’ services are vital and preferred by many service users, yet current commissioning structures do not work in their favour. The Victims’ Law must put in place central ring-fenced funding to ensure everyone can access the support that is right for them.
Ensuring victims’ rights for all.
Finally, it is necessary to note that many victims of crime do not engage with the criminal justice system and question why this is the case. I have recommended that the Ministry of Justice undertakes detailed research to understand who does and does not engage with criminal justice agencies and why this is.
I specifically note that black and minoritised women and disabled women, including learning disabled women, appear to be the least likely victim cohorts to engage with the CJS. At the same time, the Crime Survey for England and Wales suggests these two groups are more likely to be victims of crime. We must understand why some groups are over-represented in victimisation and under-represented in engagement with the criminal justice system. From that research, we must deliver action to ensure equal access to justice.
A much-needed revolution for victims
The Victims’ Law holds the potential to make the change that victims need. It must deliver real cultural change and guarantee victims a voice and rights through the system. These must be embedded through robust oversight and accountability and a strengthened Victims’ Commissioner role. Furthermore, all victims must have access to high quality, sustainable services and advocates to support them to cope and recover from crime.
We have proposed many positive changes and if they can be secured, we can look forward to a humane criminal justice system that upholds victims’ basic needs and standards. That would be a revolution for victims. Of course, at the time of writing, we have little idea of what will be in the draft Bill, which is expected shortly. We will be pressing government on our proposals and I look forward to scrutinising the Bill at committee stage and working to ensure this is the flagship legislation so urgently needed by victims.
This article was first featured in Dame Vera Baird’s 2021/22 Annual Report, published on 21 June 2021.