A comprehensive review of how victims are dealt with in other adversarial systems shows England & Wales lag other countries in providing substantive victim participatory rights.
“Victims’ rights are not a challenge to the defence, nor should they be a challenge to deliver.”
It is time to recognise victims as participants in the criminal justice process, so that their rights and interests are recognised by criminal justice agencies, according to a new report, which will prove influential in shaping thinking around the new Victims’ Law.
Commissioned by the Victims’ Commissioner, the report compares best practice in the treatment of victims across five countries that have similar adversarial regimes to that of the UK.
It finds England and Wales lag behind in providing substantive victim participatory rights and identifies measures to inform the upcoming Victims’ Law for England & Wales.
The Victims’ Commissioner, Dame Vera Baird QC says: “Acknowledging the reality that victims are participants in the criminal justice process and contribute to it should reinvigorate criminal justice agencies to observe their rights. It is a designation designed to give victims more centrality in the process whilst, of course, leaving the prosecution and defence as the only parties in the case. Victims are participants from the start to the finish, but they are currently treated more like bystanders.”
This forms one of several recommendations included in new independent analysis by the organisation Sisters for Change, whose report examines the role and rights of victims across England & Wales, Australia, Canada, New Zealand and the United States.
The authors, Jane Gordon and Alison Gordon say that despite progress by governments over the years, victims continue to feel marginalised and peripheral to the criminal trial process.
The report provides examples of how participant status can enhance treatment of victims, including the ‘Victim’s Right of Review’. This is the right to ask for a review of a decision taken either by the Police or CPS which puts an end to a case, commonly a decision not to charge. Currently, there is no duty on either the CPS or the Police to invite the victim to make representations.
In contrast, the authors cite the example of the 2015 Victoria Law Reform Commission in Australia, which recommended that the role and rights of the victim as participant in the criminal justice process should be laid out in law.
The State of Victoria moved to legally recognise the victim as participant in 2018. It is 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 State of Victoria’s Director of Public Prosecutions is also required to take all reasonable steps to advise a victim on details and progress of criminal proceedings, seek a victim’s views regarding modifying or discontinuing charges, and provide reasons for decisions to a victim.
The authors call on the Ministry of Justice to employ the same approach to underpin its development of a Victims’ Law for England & Wales.
Victims of crime in England & Wales are currently accorded rights to information and support and limited procedural rights in the revised Victims’ Code, but these rights are not enforceable and are only patchily delivered.
The Victims’ Commissioner, Dame Vera Baird QC, said: “If we are to successfully tackle falling confidence in the criminal justice system, we only need to look to some of our international peers. The criminal justice system cannot function without victims, yet victims in England & Wales continue to feel marginalised and peripheral to the criminal trial process. We need to see victims as valued participants and support them accordingly.”
The report recommends the Ministry of Justice make the Right to Review statutory in the Victims’ Law and introduce a right to make representations to which the decision-maker must respond and an obligation on the agencies to inform victims of those rights.
The authors cite the steep decline in rape prosecutions in recent years as evidence of a system which is failing some victims. Reports to police about rape have increased hugely but cases charged by CPS have dropped markedly. The CPS charging rate in rape cases fell by 39% in the past four years, from 3,671 rape cases charged in 2016-17 to 1,867 cases charged in 2019-20.
There has also been a growing proportion of general cases recorded where victims did not support criminal justice action (from 9% in year ending March 2015 to 24% in year ending March 2020).
In her 2020 survey of rape complainants, the Victims’ Commissioner found that decisions to discontinue prosecutions could be personally devastating to victims and found just one in seven believed they would receive justice by reporting the crime to the police.
The government has pledged to introduce a Victims’ Law to strengthen the rights of victims, with a consultation expected early next year.
Dame Vera Baird QC, the Victims’ Commissioner for England and Wales, says:
“Acknowledging the true position of victims as participants in the criminal justice process would prompt a long overdue cultural change across the criminal justice system, where victims’ rights are not viewed as an optional extra, but a key part of how we deliver overall justice.
Victims’ rights are not a challenge to the defence, nor should they be a challenge to deliver. They include help to understand the process, updates on their case, respectful treatment, procedural justice and support as and when it is needed – and a voice when it matters.
I thank Sisters for Change for this immensely stimulating work, which will influence the design of outcomes for victims for many years ahead.”