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Chapter 1: Meeting victims’ expectations

In this section, you will find the Victims' Commissioner's full response to the questions as set out in Chapter 1 of the Victims' Law consultation.

In this chapter, the government seeks views on:

  • existing expectations for victims (the Code) – considering the commitment to enshrine the Code in law and how to ensure that every professional and victim is made aware of what is expected for victims.
  • new expectations for victims – considering whether and how to strengthen processes to ensure that victims are heard and informed at key points, in particular communications from the police, CPS and other agencies, victim engagement in the parole process, the use of Community Impact Statements and the arrangements for victims of mentally disordered offenders.

Note: for some responses, questions have been grouped together.

View and respond to the full government consultation online.

List of questions

The full list of questions in this chapter follows below. You can find the Victims' Commissioner's full response in the sections on this page.

Existing expectations for victims: the Code

  • Question 1: Do you agree that the key principles set out in the consultation are the right ones? If not, do you have any other suggestions?
  • Question 2: What more can government and agencies listed in the Code do to ensure that frontline professionals are aware of what is required of them under the Code?
  • Question 3: What more can government and agencies listed in the Code do to ensure every victim is made aware of the Code and the service they should expect to receive under it?

Additional support for victims

  • Question 4: Do the current procedures around timing and method of communication between the police/CPS and victims about key decisions work for victims? Are there any changes that could be beneficial?
  • Question 5:
    • a) Should the police and CPS do more to take victims’ views into account in the course of their duties, particularly around decisions to proceed with cases?
    • b) Should there be an explicit requirement for the relevant prosecutor in a case or types of cases to have met with the victim before the charging decision, and before a case proceeds to trial?
    • c) What changes, if any, could be made to the Code in relation to information about the Victims’ Right to Review Scheme?
  • Question 6:
    • a) What are the benefits and costs to greater or different use of Community Impact Statements?
    • b) Can you provide an example of where one has been used effectively?
  • Question 7:
    • a) What changes, if any, could we make to allow victims to be more engaged in the parole process?
    • b) What do you think would be the advantages and any risks of implementing those changes?
  • Question 8: Should victims of mentally disordered offenders be allowed to make and submit a Victim Personal Statement when the offender’s detention is being reviewed by the Mental Health Tribunal? Please explain your answer.

Response to question 1

Note: this section was updated on 1 February 2022, including edits to express wider equalities concerns, expand on restorative justice and general edits.

This section was further updated on 2 February 2022 to include reference to the ISVA Code of Practice.

  • Question 1: Do you agree that the key principles set out in the consultation are the right ones? If not do you have any other suggestions?

Preamble

It is important to make a number of key points prior to responding to this consultation. We recognise that this is a consultation that is largely concerned with the treatment of victims whilst they engage with the criminal justice system (CJS). This is crucial and much-needed work. However, it is important to note that the vast majority of victims of crime, particularly of high harm crimes, do not engage with the CJS.

Chapter Three is the only chapter that most closely considers the needs of victims who do not enter the CJS.  We, therefore, highlight that chapter Three is of the most importance for the wellbeing of the widest proportion of victims.

There will be a range of reasons why some victims of crime do not engage with the CJS. It is of crucial importance to understand what these are in order to overcome them. We recommend that the Ministry of Justice commissions in-depth research that explores and ascertains those reasons. We specifically note that black and minoritised women and disabled women, including learning disabled women, appear to be the least likely victim cohorts to engaged with the CJS. This is in contrast to reports from the Crime Survey of England and Wales (CSEW) and other feedback which suggests these two groups are more likely to be victims of crime. We are also concerned about whether older or younger people and people of particular faiths are over-represented in victimisation and under-represented in engagement with the criminal justice system. We, therefore, request that the research explores the detailed characteristics of who does and does not engage with the CJS, why this is the case and how the CJS could be improved to remove barriers and meet the needs of all victims.

We support the key principles set out in the consultation.

However, we note that the current rights are unknown by the vast majority of victims and that compliance with the Victims’ Code is the exception, not the rule. As such, the principles are meaningless unless the concept of a victim is transformed into that of a participant in the process, rather than a bystander.

Victims’ rights are treated almost as if they are favours to be given, if possible, or explained away if not. This is not working and is not good enough.

A Victims Law is an opportunity to put these rights as clear statements and on a proper statutory footing, requiring compliance at all times.

The victim as a participant

We applaud the government’s aims set out on Page 11 of the consultation document:-

‘We want to empower victims… want them to know the importance of their role in bringing offenders to justice…. want them to be kept informed at key points throughout the case … for their voices to be heard and embedded in the criminal justice system’(pg. 11)

Those are our aims, too, and we will work with the government in any way we can to achieve them.

We agree with the government proposal to put the guiding principles into legislation and we think that the four principles set out in the document are a good start:

  1. Ensuring victims are informed so they can fully understand the criminal justice process
  2. Ensuring that they are supported including being assessed for eligibility for any specialised assistance such as special measures
  3. Ensuring they have their voices heard in the criminal justice system and be offered the opportunity to make a Victim Personal Statement to explain how the crime has impacted on them and
  4. The Victims’ Right to Review, that is to challenge decisions that directly impact them in particular decisions not to pursue or to stop a prosecution

However, the current Code does not match those principles. We describe how it will need strengthening in order to do so and in order to embrace the ambition in the document to upgrade the victim’s rights to be informed and to have a voice with the police, CPS and other agencies. Furthermore, the principles are themselves partial and expressed in a very high-level way which will not drive the culture change necessary. We offer further suggestions we see as imperative to go into the legislation if victims’ expectations are to be met, as the government intends.

We emphasise that a profound cultural change will be needed from the criminal justice agencies to achieve these expectations and the government’s aims. We set out more fully below, what our experience suggests is a key reason why a pro-victim culture has never emerged in the criminal justice system and we describe how space for victims’ interests can be found by the criminal justice agencies, even within a system which is adversarial between the state and the defendant. We recommend that victims are deemed to be participants in the criminal justice process, in order to encourage the view that they are central to it and not peripheral which is the ‘cultural shift’ the government seeks (see page 1 of the consultation document).

Implementation of the Victims’ Code has been weak. The police and CPS, who see their role in a contest over guilt/innocence with the defendant, historically saw victims as peripheral. Victim care has only evolved as a concept in the past few decades and, although the government introduced a Code of Victims’ Rights as long ago as 2006, compliance with it has never been made compulsory. This has left intact some of the legacy culture that victims are peripheral/not the agencies’ responsibility, which otherwise should have evolved away by now. It has also left agencies feeling free to disregard the Victims’ Code at will – or at least to de-prioritise it. These are entrenched cultural barriers and their effect can be exemplified by simply noting that in 2019/20 only 23% of the tens of thousands of victims who enter the criminal justice system annually have ever heard of the Victims’ Code, a figure that has hardly changed year on year since the original legislation. 

The government accepted in its 2018 Victims’ Strategy that, in contrast to its aims set out above, what frequently happens is that victims become ‘a victim of the process as well as the crime’ (see page7). And, despite almost 20 years of successive Victims’ Codes, this consultation document is easily able to quote statistics showing how few victims receive even basic Code rights. A government that wants: ‘A cultural shift so that victims are central to the way our society thinks about and responds to crime’ (see page 6) cannot any longer tolerate a position where the vast majority of victims do not get their rights and are left without the help they need to cope with crimes it has failed to protect them from in the first place.

The peripheral treatment of victims in the criminal justice context and the culture of disregard of their rights contrasts with the broadly sympathetic attitude that society has to victims of crime. We suggest that this sympathy deficit is largely attributable to the thrust of the criminal justice system being not to right victims’ wrongs but to try alleged wrongdoers. According to this philosophy, society as a whole is the victim of crime and even if called as a witness, an actual victim is not there to talk about what happened to them but to tell the court what the defendant did, as if they are a bystander to a crime against themselves. The academic Paul Rock calls victims ‘fodder for the criminal justice system’ (Rock, P., 1991. Helping victims of crime. Oxford: Clarendon Press).

Even though, on a human level, criminal justice professionals can appreciate that victims of crime suffer serious harm and many will, when possible, try to take a role in meeting their needs, their function is in the adversarial process between the defendant and the state. It is also the case that while for some professionals victims’ care and their rights simply have to take a back seat behind their core work, others see it as wholly the role of support services outside the criminal justice system. We set out some examples of recent justice agency failings in delivery below as evidence of the continued prevalence of this perspective.

The Victorian Law Reform Commission of Australia expresses well the better perception we would recommend as an aid to stimulating a more victim-sensitive criminal justice culture. They observe that victims, whilst never a party in the adversarial system between the state and the defendant, are nonetheless:

‘intimately involved from the moment of the offence right through all processes and beyond them into their future lives.'

They are not only hurt by ‘their’ crime but inextricably locked by it into the criminal justice process, as involuntary participants. In Victoria, they have determined that victims should be seen as ‘participants’ (but not parties) in the justice system and we think that is a helpful way to describe the role that victims find themselves and that it throws light on why adherence to the Code is vital in every case. How the criminal justice system treats participant victims will strongly influence their recovery. Being victimised is demeaning, and decent treatment and respect given by the criminal justice agencies, representing all of us in society, has important restorative benefits and can be powerfully symbolic.

When the criminal justice is engaged it is the key lever for restoring victims. Support services start victims on the road to recovery only to see them regress if the justice system treats them poorly, due to its public and representative nature and the high respect in which it is held. This means that good treatment by the criminal justice agencies is uniquely important for victims and cannot be delegated elsewhere. Further, recognition of victims’ interests is not at variance with a justice professional’s role in serving the public and has no impact on the adversarial process. We think that seeing a victim as a participant in the criminal justice process is a helpful concept for understanding why they have entitlement to rights in a system where the main protagonists are the state and the defendant. As such, we suggest that it can play some part in changing the culture to bring them to the centre of the system, as the government intends.

Recommendation

In order to underpin the four principles to be put into legislation, it should be enacted, following the model in Victoria, Australia, that a victim is a participant in the criminal justice process and that the entitlements under the Law and Code follow from that status in all cases. Observing those entitlements will deliver justice to them, even as the adversarial process is delivering justice to the defendant.

Below, we set out some recent examples of how the Code rights have been disregarded in order to set out the scale of the change which will be required.

  1. In the year to March 2019, whilst most victims were satisfied with their initial contact with police (73%), over a third (35%) speedily grew dissatisfied with the way the police handled their case, complaining that they were aware of little or no action being taken and there was no communication.
  2. In February 2020, The All Party Parliamentary Group on Adult Survivors of Adult Sexual Abuse found persistent communications failures: ‘Time and again survivors and supporting organisations described irregular and poor-quality communication from police after the moment of first disclosure. Many waited months to hear from police how their case was progressing.' 
  3. Victims’ Commissioner research staff analyse the victims’ module of the CSEW annually in February. In the year to end March 2020, more than half of victims said the police did not keep them informed about progress in the case, a significant drop in satisfaction over the past five years. (See Table 3.)
  4. In a Victim’s Experience survey carried out online by the Victims’ Commisioner, in June and published in September 2021, only a quarter of respondents agreed that they were kept regularly informed or received all the information they needed about the police investigation.
  5. HMICFRS/HMCPSI found in a rape inspection in 2021,  that though ISVAs stressed how important it is that decisions to take no further action are communicated sensitively to victims, such communication was inconsistent (see page 57). In a quarter of such cases, some when cases were dropped because of early legal advice by the CPS but still to be communicated by the police, there was no record of the victim being told. (See pages 57-58).
  6. The CPS must notify a victim by letter if they decide to take no further action. The same HMICFRS/HMCPSI rape inspection found that only a third of such letters were of a high standard, the rest lacked empathy or clarity’ (see page 59).This follows a report from HMCPSI in 2018 which found the same faults, and made strong recommendations only to return to the issue in 2020 reporting that ‘two years on the CPS is still sending poor quality letters to victims of crime’. They rated less than one in four letters (24.1%) as being of a satisfactory standard. Those in rape cases ‘were worse’ as were domestic abuse letters. Further, the inspectors found, in line with their 2018 findings, that ‘often the explanation of the CPS’s decision did not sufficiently cover the circumstances and included legal terms that were sometimes difficult to understand.’ They were critical that: ‘Not all prosecutors take personal responsibility for their involvement in the provision of information to allow the CPS to send effective letters to victims’. That was described as ‘a lack of compliance’ (see HMCPSI press notice).

Victims must have rights not favours

While we welcomed the new Victims’ Code of Practice last April, we repeatedly commented during its development that not only are the entitlements not rights, since they are not enforceable, but neither are they expressed as rights. For example, Right 6 provides that where police/CPS are considering an out of court disposal there is the ‘right’ to be asked your views and have them taken into account. The ‘Right’ continues:

‘Where this is not possible the police/CPS will tell you why.’ In other words, the victim’s only ‘right’ is to be told why they can’t have their ‘right’.

A similar example is in Right 8 (5) ‘When attending court and where possible you will be able to enter through a different entrance to the defendant and wait in a separate waiting area…Some court buildings do not have separate entrances for victims, however where informed HMCTS will make arrangements to make sure you don’t have to see the defendant on arrival’.

Our Special Measures report showed that victims can be terrified of meeting the defendant and it can deter them from testifying. That is likely to be especially the case where the victim has been traumatised by the offence. A guaranteed right to enter and wait – strictly separately – is an imperative basic protection and a route, even if not one ‘for victims’ has to be made available. In many courts, the judges’ entrance is used with appropriate safeguards but elsewhere, incomprehensively, this was not permitted and we have heard of victims, including a couple whose child had been killed in a road crash, being forced to mix with the defendant. The purpose of the Victims’ Code is to put make the victim central and if that is to be a reality, it is imperative that the final Code is written as a Code of Rights and not as a list of things it is nice to have if the justice authorities can manage it. Our concern was echoed very strongly by many stakeholders during our stakeholder engagement exercises.

A Victims’ Law is an opportunity to put these rights as clear statements and on a proper statutory footing, requiring compliance at all times. This means they are not delivered under the discretion of the agency concerned, where convenience or resource allows, but are adhered to with the same vigilance that is correctly applied to the rights of the defendant.

Furthermore, when agencies revise policies and operational practices that may impact upon victims, they must be required to demonstrate that there is no conflict with victim rights. In other words, victims’ rights need to be deeply ingrained into the culture of the criminal justice system.

Recommendation

The Victims’ Code should be revised and rewritten so that it clearly states that it is setting out guaranteed core statutory rights, with a statutory duty on those agencies listed in the Victims’ Code to ensure all their policies and practice are compliant and the Rights are delivered in every case without exception.

A right to independent advocates

For vulnerable victims and victims of serious violent or sexual assault or those who are bereaved, the criminal justice system is too challenging, complex and intimidating to be managed by them alone. To participate effectively at the centre of the process, as the government intends, they need an informed and empathetic professional supporter who can, inter alia, act as liaison between the victim and the agencies to the benefit of both. Our report of February 2019 ‘A Rapid Evidence Assessment of Victim Advocates’  found that advocacy interventions may be a benefit to victims’ mental health, led them to perceive an improvement in their safety and, in particular, were highly effective in decreasing the fear for ethnic minority women. There is well-researched evidence of better support for the criminal justice process and improved court attendance engendered through the greater victim confidence which comes from advocate support. The government’s Victims’ Strategy committed to exploring the case for one-to-one support from independent victim advocates. The development of the role of Advisors such as IDVAs, ISVAs, CHISVAs, etc has proven to be very positive, but it has been piecemeal and often targeted on victims of specific crime types. It is arguably not compatible with equality and diversity requirements that some kinds of traumatised victims have access to support from expert advisors and some with similar needs do not. This should now be more fully developed so that there is comprehensive provision.

Recommendation

All vulnerable victims and those who are victims of serious violent and sexual crime should have an express statutory right to a professional and trauma-informed one-to-one advocate/advisor throughout their criminal justice journey to enable them to realise their Victims’ Code rights, to have a voice, and to be better able to occupy the central role in the criminal justice system that the government intends.

Independent legal advice

In some cases, despite the stance in the adversarial system that that the prosecution is brought on behalf of everyone in society, the individual victim’s legal interests may differ from those of the state. This is particularly likely where the victim’s rights under the European Convention on Human Rights (ECHR) are at stake and, to date, has occurred most frequently in connection with the victim’s right to private and family life under Article 8. There is a negative obligation on the public authorities to abstain from arbitrary interference with those rights and regard must be had to the fair balance which must be struck between any competing interests of the individual and the state (see Roche v United Kingdom). This ‘triangulation of interests’ was recognised by the House of Lords (see R v A 2001 UKHL 25 per Lord Steyn). Clearly, the victim’s rights cannot be represented by the Crown Prosecution Service. A participant victim will require independent legal advice, to safeguard their entitlements.

The Information Commissioner, HMCPSI and the CPS themselves have reported that the CPS and police have frequently been over-intrusive in their requirements for rape complainants’ confidential material (see page 1 of Victims’ Commissioner PCSC Bill Briefing). The government has recently legislated to provide a sounder framework for requesting download of personal data from a victim’s phone and intends to consider similar provision to limit the search of material such as school and medical records, which are confidential to a victim but in the hands of third parties. Seeking so-called third-party material is now so entrenched a practice that despite the ISVA Code of Practice containing strict boundaries for ISVAs around their relationships with clients (see page 10) including the rule that they must not discuss on-going criminal cases, ISVAs’ are frequently asked for their notes.  For this consultation, the Survivors Trust interviewed 72 ISVAs of whom 60% had been asked to disclose notes as part of an investigation.  This is quite wrong unless police are asserting a reasonable suspicion that ISVAs are randomly breaking their code of conduct and further that their notes, which should not contain any notes of events, in fact show a version of events different from the complaint. This is yet more evidence of an urgent need for legislative control properly regulating requests for third-party material.

These are not the only areas where the state is unable to represent the legal rights of the victim. For instance, Section 41 of the Youth Justice and Criminal Evidence Act 1999 when a defendant applies to call evidence about the victim’s previous sexual history will also trigger Article 8 rights. Victims are often not told about such applications (even though important facts may be known to the victim). CPS are reported to take stances out of court, on the basis of whether similar applications have been allowed in the past, whereas the personal interest, reputation and well-being of the individual victim requires them to be fully informed with an independent presence, in respect of Article 8 at the application. Further, the CPS Victims Right to Review (VRR) has been broadened by the High Court to offer an opportunity for a victim to make representations on why their case should be re-considered. CPS have been dismissive of victims’ requests to review a refusal to charge, as our survey of rape survivors shows. A victim who wishes to use the voice that the Court has now given to them will require publicly funded representation to protect their interests and argue their rights. In 2005, the government announced its intention to introduce legally-aided representation for victims in homicide, rape and domestic violence cases and, in March 2014, a different government did so in a respect of victims in sexual offence cases. This should be non-means tested merits-based representation.

The Sexual Violence Complainants’ Advocate [SVCA] scheme was piloted in Northumbria to engage local solicitors to support rape complainants. The scheme took 83 referrals from September 2018 to December 2019. Casefile analysis showed poor practice around victims’ privacy rights. Advocates challenged data requests in 47% of cases. The scheme increased complainants’ confidence and understanding in the justice system and improved their ability to cope with mental health impact of system (which is likely to reduce attrition). The project changed organisational cultures, significantly decreasing police and CPS requests for indiscriminate evidence gathering. Police and CPS felt investigations were more efficient and proportionate. A judge commended the pilot scheme. It also encouraged best practice when complainants had complex needs, e.g. special measures / ABE interview. All pilot participants agreed with principle of legal support being made available for sexual offence complainants.

Recommendation

There should be a statutory right for victims to be given free legal representation in respect of any decisions taken by police, prosecutors or courts that threaten their Article 8 Right to Privacy or any other right within the European Convention and specifically in order to ensure the victim’s voice in the VRR.

A statutory right to protection for sexual assault victims’ confidential pre-trial therapy and counselling notes 

Victims of sexual assault are likely to be traumatised, and in many cases can benefit from early counselling and therapy. Their future well-being may depend on this help as may their willingness and confidence to give evidence in any trial. However, many sexual assault victims hesitate to take therapy because of concerns that notes by their counsellor will be demanded by the police/prosecution and may be sent to the defendant. Clearly, the last person someone who has been raped wants to know how it affected them is the man they say raped them. However, few want the police and CPS to access their notes either, since those agencies are thought to investigate the credibility of the victim rather than the behaviour of the defendant (see Operation Soteria) and so are seen as hostile to the victim. Unjustifiable demands for therapeutic records are made much of the time and cases are frequently dropped if victims do not sign over that intimate information (see Victims’ Commissioner PCSC Briefing on third-party material). This happens despite a current legal precedent that such notes should not be sought unless to do so is part of a reasonable line of inquiry and there is suspicion that something in them that will undermine the prosecution or assist the defence (see Alibhai & Ors, R v [2004] EWCA Crim 681)

The practice means that victims of rape and sexual assault are being forced to choose between justice and their right to the help they need. Many may feel that their recovery is more important but that leaves them without a resolution and the public with the risk of a criminal free to offend again. This is particularly a danger in sexual offending as research suggests that most rapists are serial offenders.

On the rare occasion that an allegation ends up at trial, victims can be ambushed with this highly intimate information in cross-examination, though they are notes made by another and the subject has no right to sight of them to comment on their accuracy. Counselling is therapeutic and not investigative, and notes are made about feelings and not facts.

We have set out argument in this response for legislation to curb over-intrusive demands for other personal material, but the intrusion and the risks are so serious with therapy notes that we recommend a shield of privilege around them. That would save sexual assault victims from the further harm they may be caused if their records are revealed. It would safeguard the broader public interest in the integrity of counselling and would promote willingness to report sexual assault. The law would strike middle ground. There would be absolute privilege over notes until a case got within the remit of a court when a party (defence, prosecution or police) would have to seek judicial consent for a summons to access what would then be confidences protected by qualified privilege. The Judge should override the victim’s confidentiality only for compelling reasons, taking into account whether the information has substantial probative value not available elsewhere and only if sure that the public interest in preserving confidentiality is substantially outweighed by the public interest in admitting material into evidence. We recommend this approach which will achieve the government’s intention to give victims voice in decisions which will otherwise be taken without their input and often against their interests.

There is a model scheme which has been in force in New South Wales since 1997 and is now law in all the Australian states but Queensland. The Australian adversarial system is near-identical to the system in England and Wales. It is the law there that a victim of sexual assault can consent to the release of protected confidences (can ‘waive privilege’) but only in writing and with independent legal advice and we would recommend this same additional protection in England and Wales to avoid any risk of the process being sidestepped. We commend this as a well-tried model which by requiring an appropriate balance of interests has safeguarded both victim privacy and defendant fair trial rights and has had a chilling effect on demands for this confidential material.

Recommendation

We recommend that there should be statutory system of protective privilege for the confidentiality of sexual assault victims’ therapy records in any criminal proceedings.

Anti-social behaviour – giving victims rights

We published a report, jointly with leading academics and the charity sector, on anti-social behaviour (ASB) in April 2019 – ‘Living a Nightmare’.

The Anti-Social Behaviour Act 2014 (the 2014 Act) set up a trigger of three reported incidents of ASB over a six month period at which point the victim can seek a community resolution meeting of the responsible agencies, to resolve what is by then persistent ASB. The Home Office guidance supporting this legislation acknowledges ‘the debilitating impact that persistent or repeated anti-social behaviour can have on its victims, and the cumulative impact if that behaviour persists over a period of time’. It also explains ‘the “Community Trigger”, is an important statutory safety net for victims of anti-social behaviour’ and that it helps to ensure ‘that victims’ voices are heard.’

Yet many of these victims are not recognised as victims of crime under the Victims’ Code, a point raised by stakeholders responsible for supporting victims of ASB. This means they have no statutory entitlement to access victim support services. Some Police and Crime Commissioners offer support from discretionary spend since they cannot do so from Ministry of Justice victims funds, but some PCCs do not. This means that whether support services are provided for victims of ASB is dependent on where they live, with the concern that some victims suffering significant distress from persistent ASB do not get the emotional and practical support they need to be able to cope and recover. This is likely to have impacts which are inconsistent with diversity and equality requirements, is unfair and is denying support to a cohort likely to be vulnerable following persistent ASB often targeted at them in their home.

Recommendation

All ASB victims who meet the threshold for a 'Community Trigger' should be recognised as victims of crime and be entitled to the rights to be set out under the revised Victims’ Code and in the new law.

Access to restorative justice

The Victims’ Code includes an entitlement to all victims to be informed about restorative justice. Many victims have no recollection of an offer being made. The Victims’ Commissioner’s statistical bulletin on Crime Survey for England and Wales Victimisation Data found that the percentage of victims who were offered restorative justice decreased from 8% in 2017-18 to 5% in 2018-19. Of those victims who were not offered a restorative justice meeting, the percentage who would have accepted such an offer was 26% in 2018-19.This has remained stable over the past five years. This suggests there is a demand for restorative justice on the part of victims, but they are not being informed. Victims who are participants in the criminal justice system ought to be reasonably able to expect to be informed of their entitlements so that they can make their own decision whether to pursue options such as restorative justice. We are proposing the offer of restorative justice becomes a statutory entitlement. We understand the cost of such a proposal was calculated at £30m p.a. by the Criminal Justice Alliance (2017). We recommend that the Right be reframed so that victims are told not only about restorative justice but also how to access a restorative justice service. This will help ensure they get a well-informed professional explanation to enable them to make an informed choice.

Recommendation

We recommend that there should be a statutory entitlement that all victims be informed of the possibility of restorative justice.

Capturing the rights of victims of those murdered abroad

The bereaved families of those murdered abroad face specific barriers to accessing justice. Our report, Struggling for Justice, makes a number of recommendations that recognise, and seek to overcome, the specific challenges that these families face. Whilst the Victims’ Code does not cover the rights of victims, as their cases will be captured by criminal justice systems elsewhere, it is crucial that the spirit and reality of these rights are delivered insofar as is possible. Bereaved families benefit from the rights such as being provided with clear information and being referred to support services. The relevant agencies, such as the Foreign, Commonwealth and Development Office and police must work in partnership to deliver the rights within the Code when it is possible to do so. Bereaved families of those murdered abroad must receive the rights captured within the Code insofar as it is possible for agencies within England and Wales to deliver them.

Recommendation

Bereaved families of those murdered abroad must receive the rights captured within the Code insofar as it is possible for agencies within England and Wales to deliver them.

Achieving culture change

We would add, before leaving Question 1, that without a fundamental culture change our view is that the criminal justice agencies will, by default, interpret the four principles in a minimal way given the background and history. We accept that most people in the criminal justice agencies may be sympathetic individuals, but the culture is well established. We do not know what powers of penalty/redress the government intends for Code breaches in the future and, though we have worked up an implementation system in support of Chapter Two, we struggle to think what realistically can be done via those routes. Even with the addition of our proposals, which are drawn more tightly, there is a need for far more tailored commitment before victims of traumatising offences have their complex needs fully met.

Recommendation

Unless the government compels serious commitment to these basic victims’ rights, there is little prospect of these more sensitive cases and victims having the additional support mechanisms they need to cope and recover. It would be an immensely valuable exercise to ask the leaders of all the criminal justice agencies to make a public declaration to champion the Victims’ Code.

Response to question 2

  • Question 2: What more can the government and the agencies listed in the Code do to ensure that frontline professionals are aware of what is required of them under the Code?

Government action: statutory duties

The intention is that the Code is made statutory with a legislative obligation for the listed agencies to comply with its provisions. They will all be deemed to have notice of those duties, which no doubt government will reinforce.

We strongly recommend that, together with a statutory duty on all the responsible agencies to deliver the Code rights, they should be given a statutory duty of informing victims of their Code rights, including the rights to have advocacy and legal advice and of working with victims support organisations and with victims’ advocates to ensure those rights are achieved.

In a mirror-image of this, we propose a statutory duty on the PCCs’ Victims Hubs and, in particular, but not exclusively, on IDVAs, ISVAs and other advocates (as referred to in answer to Question 1 above) to inform themselves of the Code rights, to ensure that they are communicated to all victims and to advocate for them with all the agencies named in the Code.

Government action: The Victims’ Champion

We propose that there should be a duty on each PCC where they are required to appoint an Independent Victims Champion to promote and drive victims’ rights locally, to drive the collection of data on the local operation of the Code, and to be the place of first resort to receive and investigate complaints about local breaches of the Code. (We argue in Chapter Two that a Code-specific victims complaints system should be created since many Code breaches do not fit into the police/CPS or HMCTS complaints systems.)  

Most importantly, the local Victims’ Champion should attempt to troubleshoot any glitches in Code delivery quickly so that they do not impact on the victim’s contribution to the case. We think that this is the right way to approach enforcement of Victims’ Rights, as we set out in more detail in our response to Chapter Two. We do not think that it is enough solely to offer an after-the-event complaints system. Only where troubleshooting by the Champion has not secured the victim’s Code rights should the Champion seek redress for the victim as a solution.  

Overall, our sense is that, albeit establishing these duties is vital and an important opportunity to increase awareness, many frontline staff in the criminal justice agencies are already aware of the Code. The urgency is to tell them why they must implement it and oblige them to do so. We have set out, in answer to Question 1 how we think that characterising a victim as a participant in the case can be a helpful concept for this purpose. But we are sure that the cultural change required from the agencies will need a system of scrutiny, accountability and an accessible complaints mechanism which we discuss in our response to Chapter Two.

Agency action: complying with the duty

Agencies must ensure compliance with the law and be placed under a statutory duty to promote the use of the Code and champion its delivery together with victims’ services and victims’ advocates. They should ensure the Code is part of induction, refresher and promotional training and initiate a one-off immediate training module for all staff as soon as the Act comes into force. Each agency should collect data on the use of the Code, with dip sampling and victim satisfaction surveys.

Response to question 3

  • Question 3: What more can the government and the agencies listed in the Code do to ensure every victim is made aware of the Code and the service they should expect to receive under it?

On Royal Assent, urgently issue easy-read, BSL and other accessible versions and foreign language editions. We think that many victims’ organisations may not be fully aware of the Code or, if they are, have not used it as a tool for victims, due to its historic lack of regard from the listed agencies. Victims’ organisations, whether nationally or locally commissioned, should be given a statutory duty to promote the rights and are likely to become an important conduit for making victims aware of them and for helping to champion them. Compulsory training on Code rights and compulsory collection of data on Code performance, particularly in order to guarantee the Public Sector Equality Duty, should be a condition put onto all victims’ services contracts, whether they are commissioned locally or nationally.

Despite Right 4, only 13% of victims in our latest survey of Crime Survey of England and Wales (CSEW) victims data were referred to victims’ support services so many need to learn of the Code elsewhere (not least for their right to know of their entitlement to victims support services) Police must prominently display the Code and CABs, libraries and other information points be encouraged to do so.

Response to question 4

  • Question 4: Do the current procedures around timing and method of communication between the police/CPS and victims about key decisions work for victims? Are there any changes that could be beneficial?

Communicating decisions to victims well is vital.  But we stress that there is widespread dissatisfaction about failure to deliver Code communications at all, as we set out in the examples of recent failures to do so in our answer to Question 1. There is an urgent need for all agencies to understand that informing and updating victims plays a vital role in their recovery.

Receiving a decision about the future of their case is a particularly sensitive experience. If the decision is negative, it can re-victimise the individual and trigger shock and trauma especially for victims in the ‘enhanced rights’ category.

Improving communication

In respect of overall liaison and especially for key decisions there are three well-evidenced proposals which would appropriately strengthen and supplement the current Code obligations:

  1. Responsibility for liaison should be allocated to a nominated officer in each case, likely to be a police officer but someone who can call on an equivalent individual in other agencies. It is preferable that the nominated officer has undergone trauma-informed training for all crime types but imperative that they have for dealing with victims with enhanced rights.
  2. There is evidence that where there is a contract between the nominated officer and the victim about frequency and method of communication that police are better at keeping the victim informed and so we recommend that there should be such a contract as a matter of best practice (see page 57).
  3. The requirement of notifying important decisions to enhanced rights victims within 24 hours whilst well-intentioned may be too precipitate.  In the Victims’ Commissioner survey of rape survivors CPS decisions to take no further action in rape cases were described as ‘devastating’, even in some cases as having made the victim consider self-harm. Only two-thirds of those who were notified of such decisions by police recalled being given a reason and less than half felt they were told clearly and promptly. Some used language implying re-traumatisation, such as feeling ‘broken, disgusted and traumatised’. We are aware of a victim who was telephoned with such a decision whilst shopping with her children. Careful preparation is important to ensure empathy and a proper explanation and the victims’ advocate should be present in all enhanced rights cases. If this tight deadline is loosened it should be by a maximum of a few days strictly to be used for preparation for a sympathetic mode of delivery by the nominated officer.

Crown Prosecution Service decisions

The CPS are required to notify important decisions by letter. A recent HMICFRS/HMCPSI rape inspection found that only a third of letters were of a high standard, the rest lacked empathy or clarity’(see page 59). This followed an HMCPSI report in 2018 which found the same faults, and made strong recommendations only to return to the issue in 2020 reporting that ‘two years on the CPS is still sending poor quality letters to victims of crime’. They rated less than one in four letters (24.1%) as being of a satisfactory standard. Those in rape cases ‘were worse’ as were domestic abuse letters, where ‘there was more to be done to demonstrate a level of empathy’. Further, the inspectors found, in line with their 2018 findings, that ‘often the explanation of the CPS’s decision did not sufficiently cover the circumstances and included legal terms that were sometimes difficult to understand.’ They also criticised that ‘Not all prosecutors take personal responsibility for their involvement in the provision of information to allow the CPS to send effective letters to victims’ That was described as ‘a lack of compliance’ (see press notice).

This persistence suggests weak CPS engagement with victims’ interests. The last-quoted comment from the Inspectorate gives an indication of a significant cultural malaise, that some CPS prosecutors do not think that it is their job to take any role in victim care and will therefore not think that they should deliver decisions sensitively nor comply with all the other rights to be set out in the Code and the Law. We find this of great concern and strongly recommend that government gives special consideration to making change here.

Communicating a decision in a safe way does not only mean writing better letters but taking responsibility for how the decision is delivered. This is particularly the case since only CPS are legally qualified, and we have seen examples of police being required to inform victims about decisions of which they themselves did not have a proper understanding. Especially poor practice is that CPS send decision letters to police to deliver in an errand-going capacity, not always by an officer who is even known to the victim. That should stop immediately.

Best practice is that an empathetic letter should be personally delivered by CPS, with the nominated officer and/or a victims’ advocate present. Second best is that by specific advance agreement with the complainant, the police officer can deliver it, having ensured that they have discussed its rationale with CPS. The prosecutor must be required to note the name and role in the case of any officer to whom such delivery is delegated, and data should be collected on compliance.

In our rape survey, only 10 of 50 victims were spoken to by CPS in the first instance but that 20% is excellent practice which should be required in the Code. A third of respondents requested and received a meeting with CPS after they had received a letter. This is also good practice.

However, of great concern is the attitude of some CPS prosecutors, inferred by the inspectors, that they are so little engaged with victim care that they will not input material for a victim’s letter. There were reflections of that attitude in meetings about NFA decisions with rape survivors who answered our survey:

  • ‘The meeting was a sham and I was told people would call and they never did, disgusting.’
  • ‘She was arrogant and nonchalant. No way to treat a victim of rape.’

We have prescribed how specific CPS responsibility for this should be put into the Code.

In advocating these changes, we make clear that this recommended quality, timing and method of communication is equally vital for other key decisions capable of revictimizing and retraumatising victims, insofar as they have not been involved in the decision-making itself. They include the decision to deal with a case by means of an out of court disposal, to accept a lesser plea than originally charged and to drop a case against one defendant whilst continuing it against another.

Response to question 5

  • Question 5:
    • a) Should the police and CPS do more to take victims’ views into account in the course of their duties, particularly around decisions to proceed with cases?
    • b) Should there be an explicit requirement for the relevant prosecutor in a case or types of cases to have met with the victim before the charging decision, and before a case proceeds to trial?
    • c) What changes, if any, could be made to the Code in relation to information about the Victims’ Right to Review Scheme?

Question 5a: Should the police and CPS do more to take victims’ views into account in the course of their duties, particularly around decisions to proceed with cases?

Yes. The ‘key principles’ which government propose placing in primary legislation (page 13 of the consultation document) include ‘ensuring victims have their voices heard.' We agree that this is a key principle and should be put into legislation and we focus on it in response to these questions about the agencies.

The paragraph in the consultation document dealing with this (on page 13) says: ‘Victims must have their voices heard in the criminal justice process and be offered the opportunity to make a Victim Personal Statement to explain how the crime has had an impact on them’. We agree that there is a need for more than the offer of a VPS if the victim’s voice is to be heard throughout the process.

We note that Right 7 in the Code correctly sets out that the current purpose and use of the VPS is in sentencing. We doubt that it is used (as suggested on page 14) in a way that: ‘can help service providers consider the right support needed.’ A VPS is usually made at the time of charge, too late for victims’ support services (to whom referral is made on reporting and who do and should decide what support is needed in an iterative process with the victim). We are clear that what a VPS cannot do, in any other meaningful way, is: ‘help victims to have a voice in the system’ (page 14).

Seeking victims’ views throughout their journey

In what is a dynamic process, the victims’ views need to be sought at the time of each important decision in which they are entitled to participate. There are many cases in which a VPS is not taken at all (in 2019, only 17% of victims remembered being offered one).

They are rarely updated and cannot forecast what a victim’s views will be as the case goes on. It is important to reiterate the extent to which victims are intimately and personally involved in the whole process because of the impact of the crime and that the quality of the ‘voice’ which they are given stage-by-stage is extremely important to their recovery.

Additionally, of course, the agencies may benefit from the insight offered by those views. It is important that the victim’s voice is represented whenever new decisions are in the offing. The process of updating a Victim Personal Statement involves an opportunity for discussion with the victim which should be used to ensure that they understand all the implications of each decision.

Right 6 of the Code partially provides for the taking of victims’ views, however it consists of an uneven mix of rights to contribute to professionals’ decisions and rights only to be informed after those decisions have been taken.

To ensure that victims have voice Right 6 needs fundamentally to be amended and expanded:

  • We think that it is sufficient that victims are merely notified about arrest, interview and release, as provided at Right 6.1. However, victims’ views should be taken, for consideration in respect of bail conditions where the defendant and the victim are known to each other and there may be personal safety issues. The bail decision will remain that of the police.
  • In paragraph 6.5 is a typical get-out clause redolent of the current status of Code ‘rights’ as merely favours to be delivered if convenient. It reads: ‘There may be a time when a service provider is unable to provide you with updates and/or use your preferred method of contact but in these instances they will tell you why’. This should be removed. Complaints by victims that police do not update them, sometimes for weeks or months and often despite victim’s best endeavours to get in touch, are endemic. It is not compatible with the government’s vision of a victim who has a voice in proceedings that the ‘right’ to be updated can be suborned as long a service provider who has been ‘unable’ to provide updates will ‘tell you why’ months later.
  • Paragraphs 6.6,7 and 8 provide that a victim has a right to be heard on whether to prosecute or use an out of court disposal. This is compatible with the government’s intention to give victims a voice. However, in 6.7 the last sentence, ‘where this is not possible for practical reasons, the police or the Crown Prosecution Service will tell you why’, is yet another example of why there is a culture of disregard for Code rights. It sets out a readily available escape clause from any real obligation. We are told that victims often feel guilty about ‘bothering’ police for information whereas what is required is confidence that they are entitled to information and the police/CPS are obliged to deliver it.
  • Right 6 must be changed to provide that in every case where a decision is to be made on whether to prosecute or not, the victim must be heard. Currently Right 6 provides for that voice only where there may be an out of court disposal (OOCD) instead of a prosecution. In every other case the right is only to be told the reasons for the decision after it has been taken (see 6.9 and 6.10). This is not consistent and while giving victims voice in some smaller cases where an OOCD may be a reasonable option, this excludes their voice from every decision where the choice is either that there is a prosecution or nothing at all. This exclusion applied to the vast majority of cases and will particularly exclude the victims voice from every case where the victim is entitled to enhanced rights and in all other serious caseswhere the crime is likely to have seriously affected the victim, sometimes, permanently. Currently, the government’s ambition to give victims a voice is clearly being very minimally realised. The CPS Prosecutor’s Pledge says that they will ‘take into account the impact on the victim and their family when making a charging decision.’ That commitment, and a similar one for the police, should be strengthened to make it a right that the victim’s voice be heard in every charging decision whoever takes it. We suggest that it is set out in statute that no charging decision should be made in a case where there is a victim, without the voice of that victim being heard and listened to by the decision-maker. If there are exceptional circumstances which can be envisaged by the police or the CPS, those could be set out specifically and narrowly in statute with no other ‘get out’ clause. The statutory provision must require that the victim is told of this right and actively consulted by the decision-maker. Right 6 should be amended to match.

We have already quoted above how huge the impact of such decisions can be and how profound the effect and have illustrated that through the examples in our rape survey. There is no question of suggesting the that victims’ views should be determinative, but they must be listened-to. It is well-established that victims who are consulted and heard cope significantly better if a decision is contrary to their wishes, eventually made against them (see ‘What works in supporting victims of crime: A Rapid Evidence Assessment’).

Victims are likelier to help the authorities in the future if they feel treated fairly.

Question 5b: Should there be an explicit requirement for the relevant prosecutor in a case or types of cases to have met with the victim before the charging decision and before a case proceeds to trial?

Yes.

There should be an identical statutory right for a victim to be heard if, in any circumstances, a decision is to be made about dropping/discontinuing a case after it has been charged, and/or if CPS or police are considering accepting a plea of guilty to a charge which is different from the one on which the victim has been consulted.

Currently there is no victim’s voice in either of those decisions though they can have the same or a stronger impact on a victim. Giving victims a voice cannot be achieved by giving a few victims that right here and there. As we turn now to the Victims Right to Review and Q 5c, we would add that it is imperative that the voice has to be listened to by the actual decision-maker and that the decision-maker is identified in every case.

Question 5c: What changes if any could be made to the Code in relation to information about the Victims Right to Review?

A number of changes are required in order to ensure that the Victims’ Right to Review (VRR) is effective and victim centred.

  1. Both VRR systems should be set out in statute and explained in the Code.
  2. Consistent with what we propose in our answers to 5a and 5b, both VRR systems should commence with the decision-maker identifying themselves to the victim so that the correct scheme can be pursued. We think that the right to know who took the decision should be added to the Code.
  3. Consistent with what we have said in answer to 5a and b above, both VRR schemes should be changed to apply to all charging and related decisions, including where a case is dropped after charge, a different charge from the one discussed with the victim is substituted, where there is a plea bargain, where charges are dropped against one defendant but continued against another, and in any other similar circumstance. This could be put into legislation for clarity and the Code altered accordingly.
  4. An urgent fix is required for a large number of cases which fall between the two VRR systems, excluding the effective use of either. This happens when police seek early legal advice from the CPS and receive an indication that the case will not/is unlikely to be charged. The police have little choice but to take no further action. Neither the NPCC nor the CPS Right to Review has any effect. Where the CPS is the charging authority, the NPCC VRR is triggered only if police have decided that it doesn’t meet the test for referring it to them(see page 23 of the Victims’ Code) but if that is done on the basis that the CPS have told them that it won’t that is all the police can tell the victim. Police have no means of changing a decision which theoretically they made but, pragmatically, did not. On the other hand, the case has never formally entered the CPS arena so their Right to Review cannot be actioned by the victim. (Nor, for the same reason, can there be a proxy via the police own right of appeal against a CPS refusal to charge.) We have been told that this occurs in a wide range of cases, clearly more serious ones where CPS would be the charging authority. We suggest that the reality that the CPS made the decision is the correct approach.
  5. A further urgent fix is needed to prevent a decision not to prosecute from being made final either by irreversible notice to the defendant, by asking a court to sanction it or in any other way until time for a VRR has passed. (Currently CPS require requests to be made within 10 working days of the decision letter, target 10 more for their decision and if there is a further request for independent review that has the same time limits.) Currently, the VRR is frequently ousted by CPS choosing to take one of those irrevocable steps so that they are unable to change their decision on review.
  6. The Code does not explain how the VRR system works. It should be made clear that victims have the opportunity not just to ask another police officer or CPS prosecutor to reconsider the case but to make representations as to why the case should proceed. The case of FNM makes clear that the victim is entitled to a ‘fair opportunity’ to do so and if representations are made, they must be taken into account. The CPS website only says; ‘Any representations which are made will be considered but must be submitted within 14 days of the request for a review’. The full facts should be set out in the Code with a duty that CPS explain the opportunity, an important supplement to the victims’ voice, added by the High Court.

Response to question 6

Note: The Victims' Commissioner will not be submitting a response to these questions. It is felt that this is beyond the area of expertise of the office.

We are aware that the domestic abuse sector is registering serious concerns about any proposed use of Community Impact Statements in domestic abuse cases. Please refer to the response from Women's Aid and others.

  • Question 6:
    • a) What are the benefits and costs to greater or different use of Community Impact Statements?
    • b) Can you provide an example of where one has been used effectively?

Response to question 7

  • Question 7:
    • a) What changes, if any, could we make to allow victims to be more engaged in the parole process?
    • b) What do you think would be the advantages and any risks of implementing those changes?

We advocate for open justice and greater victim engagement but we have reservations about the government’s current proposals to open parole hearings to the public. We are particularly mindful of the need to protect victims and other third parties and to avoid any step that might inadvertently inhibit offenders and professional witnesses from being candid in response to questions from the Parole Board who need information in order make an accurate assessment of the offender’s future risk of serious harm. 

Other opportunities for greater openness and victims’ understanding would include more information being shared with victims during the offender’s sentence, more victims being persuaded to participate in the Victim Contact Scheme (VCS) and a review of the Parole Board’s high-level summaries of parole decisions to look for means to share more information with victims who do not wish to attend the hearing. 

Current Victim Engagement with the Parole Process

The Parole process has been opened up significantly from what was a closed system so that now victims can: submit a Victim Personal Statement and present it in person at oral hearing; receive a summary of the decision; and apply for decisions to be re-considered. During lockdown use of video-links set a precedent which could become the norm, given the difficulty of victims attending hearings held in prison. There is better engagement with victims on what to request in respect of licence conditions.

Open Parole Hearings 

Parole decisions can generate controversy, often due to poor information on how decisions are made.  Victims are likelier to accept a release decision less negatively if they have more information and see the painstaking care taken by parole members. However, in coming to their assessment, Parole Board members have to ask personal questions to the offender in relation to their former life, the offence, their mental and physical health and their treatment and progress in custody. This questioning can be painful and retraumatising for victims.

Professional report writers must feel able to speak openly to the Board and positively about the offender, where appropriate, without feeling constrained. Hearings will also involve information relating to the victim and the offence which may cause them distress if heard in public. Most offenders attend multiple parole hearings before being released, which can cause  distress to happen time and again, risking any form of closure. Whilst the decision whether to attend the hearing must rest with the victim, there would almost certainly be a need for them to have professional support at any such hearing as well as support to cope and recover in the run up to and after the hearing.

All this risk to recovery and wellbeing of victims would be worse if the hearing were to be open to the public.

It would be better to restrict attendance to the victims of the crime but additionally, given those risks, to give the Parole Board discretion about full or partial access to the hearing. There can be multiple victims and extended families involved and thought should be given to victims observing hearings remotely and not from within the prison, possibly in victim hubs, where support was readily available if required.

Re-engaging Victims

Access to the parole process is dependent upon victims opting into the Victim Contact Scheme which many do not, for a variety of reasons, and are therefore unable to participate or have their voice heard. The Parole Board says that only 30% of parole hearings include a victim personal statement and though there will be victims who do not wish to make one, we suspect that many who did not feel able to engage with the Victim Contact Scheme do not know that the offender is being considered for parole. Too often we hear reports of victims being shocked to find that the offender has been released through a third party or by bumping into them.

The Probation Reform Programme extends to the operation of the Victim Contact Scheme and we have asked them to consider how they might re-engage with victims outside the scheme in time for the parole process. There is a proposal to set up a dedicated team to trace victims of legacy cases which ought to be done to coincide with any other changes to make the parole process more transparent. Greater transparency will be of limited value if thousands of eligible victims remain outside of the Victim Contact Scheme.

We also need to consider how the initial offer is made to victims to join the scheme.  Pilots have shown that having the scheme properly explained, by probation staff, significantly improves the opt in rate.

High Level Summaries

Improving victim engagement in the parole process must include better high-level summaries of the reasons behind decisions. Over 2,500 victims in the Victim Contact Scheme have opted to be sent high level summaries. Last year, the re-consideration mechanism was introduced.  This offered an opportunity for both offenders and victims to challenge the Parole Board. High-level summaries must provide sufficient information not only for the victim to understand how the decision was reached but also to help a decision whether to request for re-consideration. It seems to us that there is scope to share more information. Allowing victims to attend parole hearings means they will hear much greater detail and it would be incongruous not to make the same level available in the subsequent written high-level summaries.

Greater transparency

Opening up parole hearings will not by itself make the parole process more transparent. It needs to be part of bigger reform covering the victim journey from trial to release.  Victims in the Contact Scheme receive an annual contact letter and, routinely, it will advise them that there have been no significant developments, making no reference to offending behaviour work, signs of maturation, remorse or any other indicator of progress. Eventually, when the offender is eligible to apply for parole and the victim is invited to become more engaged, they will know very little about the offender, will not understand the context for the parole review and are therefore often shocked and upset that the offender is considered low risk or even ready for release. A small but important step that we have driven is that re-categorisations will be mentioned in annual letters but we need to go further. We would ask the government to consider how we can convey to victims information on a range of indicators of progress or regression, for example, better custodial behaviour, signs of remorse, or active engagement on offending behaviour programmes throughout the offender’s sentence. The purpose of pursuing better victim engagement with the parole board from our point of view is that, insofar as a victim wishes it, it allows them the maximum opportunity to understand the progress that the offender has made and so, we hope. be better able to accept their release. It is obviously the case that in most cases the offender will be released at some time and this seems to be a potential route to making that less traumatic.

Response to question 8

Note: this section was substantively updated on 1 February 2022 to include a recommendation that in cases of a killing by a mentally disordered offender, a statement must be provided to the victim's family, defining the nature of the offender’s illness and how it impacted upon the motives for the killing.

  • Question 8: Should victims of mentally disordered offenders be allowed to make a Victim Personal Statement when the offender’s detention is being reviewed by the Mental Health Tribunal? Please explain your answer.

Yes. In addition, we have grouped here, for the convenience of the Ministry of Justice, two further requirements that we believe are essential to ensure equal treatment for victims of mentally disordered offenders.

Our report, ‘Entitlements and experiences of victims of mentally disordered offenders’ was published in 2018 and called on victims of mentally disordered offenders to be given the same entitlements and support as other victims. This includes access to a victim liaison officer, the right to submit a Victim Personal Statement to Mental Health Review Tribunals and the right to attend hearings. At present, this group of victims are excluded from participating in the review process completely other than being able to request discharge conditions. This situation is wholly inconsistent with the status of participant that we are calling for in this paper.

Giving these victims the right to have a voice at the tribunal not only provides parity of treatment with those victims whose offenders are referred to the Parole Board, but it is also consistent with the status of victims as active participants in the criminal justice system. It also assists victims in coping and recovering from what has happened to them. We have pressed for these changes to be made, and now consider that there should be a statutory requirement to provide this group of victims with the same level of treatment as all other victims.

Additionally, in order that victims whose close family member has been killed by a mentally disordered offender should be aided to cope and recover, it is imperative that the victim’s family should have information about the motivations of the offender and about how the life of their loved one was taken. In cases where the offender is not mentally disordered, this will be made clear by the criminal justice agencies and/or in open court. Victims of mentally disordered offenders deserve similar closure.

In cases where there are mental health issues, psychiatrists will usually be instructed for the prosecution and defence. If they agree as to a diagnosis and the role it played in the offender’s behaviour, a plea of guilty to manslaughter can be agreed upon by the prosecution and defence in private and any subsequent hearing will be short and relate to the appropriate medical disposal of the defendant with no mention of their motivation or much of the factual scene or the context. There is no doubting that this is in the public interest and should not be criticised. However, in such instances, the mental state of the defendant is never publicly disclosed and the way in which the defendant’s illness gave rise to the killing is never made known to the family. That often leaves a family with no further information other than their relative was killed by a mentally disordered offender.

It is well known and well researched that in order to cope and recover from such trauma, contextual information surrounding the case is an important determining factor. Victims of mentally disordered offenders in this situation will be refused access to any material about the defendant’s motivations and illness, on the grounds of ‘patient confidentiality'. Whilst this is an essential right and should not be contested, it is established in precedent that if the public interest requires it, for instance where a diagnosis is disputed, material about the nature of the offender’s illness and their motivations can be disclosed publicly. Famously, there was a full investigation in a public court about the mental state of the Yorkshire Ripper.  

Recommendation

We recommend that in every case whereby a victim has died at the hands of a mentally disordered offender, the criminal justice agencies involved in such a case should be required to request the psychiatrists draw up an agreed statement to define the nature of the offender’s illness and how it impacted upon the motives for the killing. Victims’ families must be provided with appropriate information to help them cope and recover. Without any such context and understanding, their recovery will be far harder.