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Victims Law: Victims must be participants in the justice system – not onlookers

In her 2020/21 Annual Report, Dame Vera Baird sets our her vision for reconceptualising the status of victims in the forthcoming Victims Bill.

The time has come to re-conceptaulise the status of victims, so that they are seen as active participants from the point the crime is committed throughout the criminal justice process and beyond.
Annual Report of the Victims’ Commissioner 2020 to 2021

In the adversarial system, 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. This centrality is not to be criticised and defendant’s rights need to be fully protected.

However, all the agencies lean in towards this focus. It is inevitable that victims are all too often seen as temporary and marginal – at best ‘witness fodder’ as one academic has described.

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. If a case is brought, the victim can be compelled to be a witness but is not there to talk about what he/she has personally suffered, merely, like a bystander, to tell the court what the defendant did.

The treatment of victims as bystanders across the criminal justice system impacts not only on their experience of system but their perception of it. The time has come to re-conceptualise the status of victims so that they are seen as active participants from the point the crime is committed throughout the criminal justice process and beyond. If we can give the criminal justice agencies a clear understanding of that, they may be more likely to treat victims with the respect and care they deserve.

The introduction of a Victims Law is an opportunity to address this by redefining the status of victims within the criminal justice system as active participants with rights that flow from this status.

Victim as participant

My starting point in making the case for this change in status for victims of crime is that many will have suffered serious injury, 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. The notion is that the state prosecutes on behalf of all the public. But there is a great difference between the interests of members of the public in having a good criminal justice system and the profound interest in one specific case of a deeply affected victim. That special interest requires that victims have rights, but we do not acknowledge their unique position and by failing to do so, we fail to provide the rights urgently needed to support victims.

The criminal justice system, which can’t function without victims, needs to adjust its perspective to see them as valued participants and to support them appropriately. The rights that should be afforded to victim participants are no challenge to the defence. They include help to understand the process, updates on their case, respectful treatment, procedural justice and support as and when it is needed. These are basic requirements to which it is hard to object. 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.

Victims also want their voice to be considered at important stages in the proceedings, but not to take on decisions which remain the responsibility of the state. There is legal recognition of the victim’s special interest in their own case, requiring care to be taken of their rights. As the late Lord Steyn said: (AG’s Ref 3 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.”

He reiterated the point in R v A (No. 2):

“It is well established that the guarantee of a fair trial under article 6 is absolute: a conviction obtained in breach of it cannot stand… The only balancing permitted is in respect of what the concept of a fair trial entails: here account may be taken of the familiar triangulation of interests of the accused, the victim and society. In this context, proportionality has a role to play.”

 A report commissioned by me and prepared by the organisation Sisters for Change and published in December 2020, examines the role and rights of victims across England & Wales, Australia, Canada, New Zealand and the United States. The authors found that despite progress by UK governments over the years, victims continue to feel marginalised and peripheral to the criminal trial process. In contrast, the authors cite the example of the 2015 Victoria Law Reform Commission in Australia, which recommended the role and rights of the victim as participant in the criminal justice process should be laid out in law.

The Victoria Law Reform Commission in 2016 recommended:

“…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.”

The State of Victoria moved legally to recognise the victim as 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.

In other words, the state redefined the role of bystander to that of participant – with a view to better practical treatment. I believe the Victims Law is an opportunity for the UK 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 they have suffered a wrong. Importantly, their ‘rights’ are elevated from a favour, to be done where possible and if resources allow, to an inherent requirement and core function of the system. The default position is 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. Again, it is important to reiterate this does not mean they become decision-makers, nor do their rights in any way impact upon the rights of defendants.

We have therefore concluded that a Victims Law which has the ambition of transforming the victim experience of the criminal justice system needs to start by re-conceptualising the status of victims within that system. It should offer a formal and recognised status for the first time. The Bill should offer recognition that a victim of crime has an inherent interest in the response by the criminal justice system to that crime, giving rise to rights and entitlements and acknowledging the victim’s role as a participant, but not as a party, in proceedings for criminal offences. This new status would need to be supported by a set of enforceable minimum guarantees which support them to participate.

This article was first featured in Dame Vera Baird’s 2020/21 Annual Report, published on 21 July 2021.