Posts Tagged ‘victims’ code’
The Queen’s speech 2021: proposals affecting the English Legal System
In this note I set out a brief summary of those Bills which are most likely to impact upon the English Legal System and the topics I consider in my book on the subject.
Top of the list is the Police, Crime, Sentencing and Courts Bill. This Bill is not new, but is one being carried over from the last Parliament.
It has already attracted a great deal of public attention with widespread protests against its proposals for changing the law on the powers of the police to control demonstrations.
But it is a Bill which goes much wider than that and contains a range of important proposals which will affect reforms to the ways of working in courts and tribunals, on bail and on sentencing.
A Draft Victims Bill will also be published containing proposals to:
● Put into law the rights that were set out in the recent Victims’ Code which are designed to improve victims of crime experience of the criminal justice systeem; and
● Set expectations for the standard and availability of victim support for victims of domestic abuse and sexual violence.
Being a draft Bill, these ideas will be the subject of consultation before a definitive Bill is presented to Parliament. These measures are unlikely to become law for a couple of years.
A Judicial Review Bill is proposed. The issue of judicial review has been on the Government’s agenda for a long time. It was the subject of a review by a team led by Lord Faulks which suggested the possibility of some detailed changes to the current law (in particularly creating a power for the courts to suspend a quashing order) but which thought the main principles of the law should remain unchanged. The Government has launched a consultation on whether further questions need to be addressed, in particular whether and if so how the courts could be prevented from reviewing particular categories of issue. The outcome of this consultation is not yet available. I assume that the Bill which has been announced will not be published until the current consultation is completed.
A Dissolution and Calling of Parliament Bill is designed to repeal the Fixed-Terms Parliaments Act 2011. In addition, the briefing on the Bill states that it will revive the prerogative powers relating to the dissolution of Parliament, and the calling of a new Parliament. (This provokes an interesting question whether prerogative powers – which are the residual powers of the Crown still exercised by the Executive branch of Government – retain this character once they have been provided for in an Act of Parliament.)
Furthermore, it is said that the Bill will reaffirm ‘the long-standing position that the courts may not block a dissolution (and hence a general election)’ through a non-justiciability clause.
Both the Judicial Review Bill and the Dissolution and Calling of Parliament Bill will be the subject of intense critical debate, particularly by constitutional and public lawyers as well as others interested in the operation of Government.
Finally, mention may be made of the Electoral Integrity Bill which make changes to the ways in which elections are run. In addition to the widely publicised proposal that voters should be required to bring some form of photo ID with them to the polling station, the Bill will also require election messages sent on social media should contain an ‘imprint’ showing who has published the message; improving access to polling stations for the disabled; and removing limits on the ability of UK citizens who live overseas (expats) to vote in UK elections.
The speech and the background briefing are available at https://www.gov.uk/government/publications/queens-speech-2021-background-briefing-notes
New Code of Practice for the treatment of victims of crime
For some time, the Government has been promising the publication of a new Code of Practice on how the victims of crime should be treated by those involved in the criminal justice system. Following a consultation, the new code was published in November 2020. It has been laid before Parliament and came into effect on 1 April 2021.
The Code provides that victims have the following 12 rights. They are set out, in summary, as:
- To be able to understand and to be understood. You have the Right to be given information in a way that is easy to understand and to be provided with help to be understood, including, where necessary, access to interpretation and translation services.
- To have the details of the crime recorded without unjustified delay. You have the Right to have details of the crime recorded by the police as soon as possible after the incident. If you are required to provide a witness statement or be interviewed, you have the Right to be provided with additional support to assist you through this process.
- To be provided with information when reporting the crime. You have the Right to receive written confirmation when reporting a crime, to be provided with information about the criminal justice process and to be told about programmes or services for victims. This might include services where you can meet with the suspect or offender, which is known as Restorative Justice.
- To be referred to services that support victims and have services and support tailored to your needs. You have the Right to be referred to services that support victims, which includes the Right to contact them directly, and to have your needs assessed so services and support can be tailored to meet your needs. If eligible, you have the Right to be offered a referral to specialist support services and to be told about additional support available at court, for example special measures.
- To be provided with information about compensation. Where eligible, you have the Right to be told about how to claim compensation for any loss, damage or injury caused as a result of crime.
- To be provided with information about the investigation and prosecution. You have the Right to be provided with updates on your case and to be told when important decisions are taken. You also have the Right, at certain stages of the justice process, to ask for decisions to be looked at again by the relevant service provider.
- To make a Victim Personal Statement. You have the Right to make a Victim Personal Statement, which tells the court how the crime has affected you and is considered when sentencing the offender. You will be given information about the process.
- To be given information about the trial, trial process and your role as a witness. If your case goes to court, you have the Right to be told the time, date and location of any hearing and the outcome of those hearings in a timely way. If you are required to give evidence, you have the Right to be offered appropriate help before the trial and, where possible, if the court allows, to meet with the prosecutor before giving evidence.
- To be given information about the outcome of the case and any appeals. You have the Right to be told the outcome of the case and, if the defendant is convicted, to be given an explanation of the sentence. If the offender appeals against their conviction or sentence, you have the Right to be told about the appeal and its outcome.
- To be paid expenses and have property returned. If you are required to attend court and give evidence, you have the Right to claim certain expenses. If any of your property was taken as evidence, you have the Right to get it back as soon as possible.
- To be given information about the offender following a conviction. Where eligible, you have the Right to be automatically referred to the Victim Contact Scheme, which will provide you with information about the offender and their progress in prison, and if/when they become eligible for consideration of parole or release. Where applicable, you also have the Right to make a new Victim Personal Statement, in which you can say how the crime continues to affect you.
- To make a complaint about your Rights not being met. If you believe that you have not received your Rights, you have the Right to make a complaint to the relevant service provider. If you remain unhappy, you can contact the Parliamentary and Health Service Ombudsman.
While the new Code is to be welcomed, there are at least three challenges to be faced for it to become effective:
First, as the Government itself acknowledges, the existence of the code is not widely known amongst the general public. Their potential role in trying to ensure that the practices set out in the code are actually delivered won’t be fulfilled if they do not know about the code.
Second, there have been enough reports in the media in recent months which suggest that there is an urgent need for training on the content of the code in all criminal justice agencies – the police, prosecutors, the courts, the probation service, the parole board have all been criticised for ignoring victims.
Third, while the Victim’s Commissioner (currently Dame Vera Baird) has statutory responsibility to promote the interests of victims and witnesses; to take such steps as considered appropriate to encourage good practice; and to keep under the review the operation of the Code, a recent independent report argues that she lacks adequate legal powers to enable her to fulfil her responsbilities. The report recommends that the Commissioner needs additional powers to:
- Undertake effective review of the operation of the Code;
- Rely on the cooperation of bodies named in the Code when encouraging them to adopt good practice;
- Identify weakness in the implementation of the Code;
- Require action if bodies are found not to be complying with the Code;
- In the last resort and if necessary to clarify the law in the public interest, to bring appropriate legal proceedings;
- Receive and direct complaints from victims as users of services provided by bodies named in the Code;
- Conduct and commission research and training on, for example, what constitutes good practice and on victims’ emergent needs;
- Require changes to the Code if it is found to be inadequate;
- Ensure that Parliament is fully aware of victims’ needs, and upholds their entitlements and rights;
- Recommend changes to the law.
As the Government has stated that it wishes to introduce a new Victims Law, the Commissioner hopes that these proposals may be considered as a key element in the development of new legislation.
The new Victims Code may be found at https://www.gov.uk/government/consultations/consultation-on-improving-the-victims-code and follow the links to Government response, and Victims Code 2020.
The report on the Victims’ Commissioner’s powers is at https://victimscommissioner.org.uk/news/independent-report-calls-for-the-victims-commissioner-to-have-enhanced-powers-to-ensure-agencies-are-held-to-account/ – again follow the links.
Further information is available at https://www.gov.uk/government/publications/the-code-of-practice-for-victims-of-crime
Victims of crime: increase of the victim surcharge and consultation on new Code for victims
In March 2020, the Government announced that it was increasing the Victim Surcharge by 5%. This was done by a Statutory Instrument which came into force on 14 April 2020.
The Victim Surcharge is not a fine, but a separate charge which courts must impose on all offenders to ensure they bear some responsibility towards the cost of supporting victims. Revenue from the Surcharge contributes to the Victim and Witness Budget which is used to grant fund Police and Crime Commissioners, who commission local support services for victims. It also funds nationally commissioned support such as:
- Rape Support centres across England and Wales,
- the Court Based Witness Service, and
- the National Homicide Service.
The Government estimates that the 5% increase will raise between £1 million and £2 million a year to help fund victim support services. It will see offenders pay between £1 to £9 extra, depending on their sentence. The Government is considering whether the surcharge should be increased even further.
Also in March 2020, the Government announced a consultation on proposals to change the Victims’ Code. If brought into effect, these would change the structure of the existing Code so it becomes a clearly defined set of rights, that are easy for victims to understand and which set out the minimum level of service victims can expect from criminal justice agencies.
The proposals focus on a number of key areas:
- raising awareness and accessibility;
- providing clearer information on victims’ rights to access practical and emotional support;
- strengthening communication and taking account of the victim’s preferences; and
- increasing the voice of the victim by providing more flexibility in the Victim Personal Statement process.
The Consultation ran until the end of May 2020; the outcome is still awaited.
For the announcement on the increase in the victim surcharge, see https://www.gov.uk/government/news/criminals-made-to-pay-more-to-fund-victim-support
More information on the Consultation on the Victims Code is at https://consult.justice.gov.uk/victim-policy/consultation-on-improving-the-victims-code/
Reforming the parole board: new announcements
In April 2018 I noted here the fact that the Government was planning to take steps to reform the ways in which the Parole Board goes about its work. In March 2019, the Government has published the conclusions it has reached so far on this work. The principal features of the new approach are:
- The Government will change the Parole Board Rules to create a new reconsideration mechanism so if there is a seriously flawed decision it can be looked at again without the need for judicial review. This is the most important change in the current round of reform proposals.
- The Parole Board will publish new Standard Practice documents which will make more transparent the considerations and approaches to decision making that should normally be followed
- Improved engagement and communication with victims will be delivered through changes to the Victim Contact Scheme, the commitments in the Victims Strategy published on 10 September 2018 (see this blog November 29 2018) and a revised Victims’ Code following consultation in 2019.
- The Government will replace the current Prison Service Instruction on the parole process with a new Policy Framework which will make improvements to timeliness and efficiency as well as ensure the published instructions are up-to-date and support the other reforms.
- A new Operational Protocol between the Parole Board and HM Prisons and Probation Service will be published which will clarify and make more open everyone’s roles and responsibilities; support better joint working; and reduce duplication.
- Provision will be made in the Rules for prisoners with mental health needs and learning difficulties, who lack mental capacity, to ensure a fair hearing, including the appointment of suitable representation if necessary.
- A Rules Committee will be created to oversee future Rule changes, ensuring the rules keep pace with wider developments, with input from key stakeholders including victim representatives.
- A further Review of the Parole Board will examine the future constitution of the Parole Board and whether more fundamental reform requiring primary legislation is needed.
Further information about these proposed reforms can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/775844/review-of-the-pb-rules-and-rm.pdf
A separate paper sets out in more detail how the proposed reconsideration mechanism will work. This is potentially an important change; its operation will need to be kept under review to ensure that it is an effective means of seeking reconsideration without the need for judicial review proceedings.
For further detail see https://www.gov.uk/government/consultations/reconsideration-of-parole-board-decisions-creating-a-new-and-open-system
The Victims Strategy – 2018
In September 2018, the Government published its cross-government Victims Strategy. It sets out a criminal justice system wide response to improving the support offered to victims of crime and incorporates actions from all criminal justice agencies, including the police, CPS and courts.
It is divided into 5 key sections
- overarching commitments. These include:
- Strengthening the Victims’ Code, and consulting on the detail of victim focused legislation, including strengthening the powers of the Victims’ Commissioner, and delivering a Victims’ Law.
- Holding agencies to account for compliance with the Victims’ Code through improved reporting, monitoring and transparency.
- Developing the detail on the role of the Independent Public Advocate for bereaved families who have lost loved ones in extraordinary and tragic events.
- Abolishing the rule which denied compensation for some victims who lived with their attacker prior to 1979 and consulting on further changes to the Criminal Injuries Compensation Scheme.
- improving support for all victims of crime, whether or not they report the crime. This includes commitments to:
- Increase spending from £31 million in 2018 to £39 million in 2020/21 to improve services and pathways for survivors and victims of sexual violence and abuse who seek support to and from Sexual Assault Referral Centres.
- Develop a new delivery model for victim support services, coordinating funding across government.
- Expand and extend support available to families bereaved by homicide, including bringing in new funding for advocacy support for families bereaved by domestic homicide.
- Spend £8 million on interventions to ensure support is available to children who witness domestic abuse.
- Pilot the ‘Child House’ model in London, whereby multiple services are brought together in a child-friendly environment to minimise additional trauma.
- improving victim support after a crime has been reported. This includes commitments to:
- Introduce improved police training, including new guidance on conducting interviews and collecting evidence, and a trial of body worn cameras to take Victim Personal Statements.
- Increase the number of Registered Intermediaries, communication experts helping vulnerable victims and witnesses give their best evidence at police interview and at court, by 25%.
- Increase opportunities for victims to engage in alternative solutions to court.
- Improve overall victim communication, including when explaining decisions not to prosecute and on the right to review Crown Prosecution Service decisions.
- better support for victims during the court process. This includes commitments to:
- Improve the court environment, with new victim-friendly waiting areas and a new court design guide focussing on accessibility for the most vulnerable.
- Free up court time in the magistrates’ court by dealing with crimes with no identifiable victim (e.g. fare evasion) outside court hearings.
- Continue to use video links to allow vulnerable victims to provide evidence away from the defendant and courtroom altogether.
- Encourage take up of pre-trial therapy by launching new guidance and a toolkit for prosecutors and therapists.
- making sure victims understand a court’s decision, the implications for them, and for the offender. This includes commitments to:
- Review and consider extending the Unduly Lenient Sentence scheme so victims and the public can have sentences reconsidered by the Court of Appeal.
- Reform the Victim Contact Scheme, making it easier to opt in, introducing more frequent communication, and greater use of digital contact methods.
- Improve Victim Liaison Officer training, especially in supporting victims during parole hearings and in making a Victim Personal Statement.
- Review and consider whether any improvements need to be made to entitlements for victims of mentally disordered offenders.
This is substantial agenda of what seem to me to be good ideas. Some of them can be implemented quickly. Others will take more time. What is therefore also needed is a committment to publish progress reports which show how these initiatives are developing throughout the country.
Source: Adapted from https://www.gov.uk/government/publications/victims-strategy/victims-strategy-html-version where the full text of the strategy statement can be found.
Parole Board – review of procedures
The decision by the Parole Board to release the London Cab Driver John Warboys – who had been convicted of raping a number of his customers – has generated a great deal of publicity. Many of the challenges in that case arose from the fact that Warboys had been sentenced to an Indeterminate Sentence, which meant that he could continue to be detained after the period set by the judge as punishment for his crime, where it was anticipated that his release would be a danger to the public. (The law relating to such sentences was changed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.)
The Government has now announced that there is to be a review of the practices and procedures of the Parole Board. This is to include a review of how the work of the Board impacts on the victims of the crimes committed by those the Board is considering for release.
The terms of the reference are as follows:
This review will consider the case for changes in law, policy and procedure in relation to Parole Board decision-making. It will include an examination of the transparency of the process and reasons for parole decisions, and how victims are appropriately engaged in that process. It will take account of the interests of justice, public confidence in the system and the impact on victims. The review will draw on the views and experience of victims, practitioners and international best practice.The review will focus on the following areas:1. The law, policy, guidance and practice relating to challenges to Parole Board decision making, specifically whether there should be a mechanism to allow parole decisions to be reconsidered.2. The transparency of Parole Board decision making, including:whether the outcomes of Parole Board decisions should be published or otherwisedisclosed;whether the reasons for those decisions should be published, and if so to what extent; andwhether there are any other changes that should be made in order to contribute to greater transparency.3. Victim involvement in Parole Board hearings:to review the relevant entitlements outlined in the Victims’ Code to determine whether improvements should be made to how victims are currently involved in and contribute to Parole Board hearings;what improvements should be made to how their involvement is facilitated.4. Arrangements for communicating with victims:to review whether the current entitlements for victims who qualify under the Domestic Violence, Crime and Victims Act 2004 for the Victim Contact Scheme are adequate, including in relation to Victim Personal Statements and licence conditions;to review whether improvements can be made to the way that the scheme operates in practice, in particular the process by which victims are notified of their entitlements and of decisions; whilst respecting the victim’s preference for how they are contacted;to consider the question of ongoing contact with victims who are eligible for the Victim Contact Scheme but have previously opted out; andwhether there need to be new entitlements or procedures for victims not covered by the statutory scheme.
New Code of Practice for Victims of Crime
In October 2015, a new Code of Practice for Victims was published, replacing one originally published in 2013. It sets out in some detail what victims of crime should expect from the criminal justice system. There are separate sections for adult and young victims. It also sets out the responsibilities the Code places on the key actors in the criminal justice system.
It is relevant to all stage in the criminal justice process: investigation and pre-trial; the trial itself; and post-trial.
The code summarises the entitlements as follows:
You are entitled to:
• A written acknowledgement that you have reported a crime, including the basic details of the offence;
• An enhanced service if you are a victim of serious crime, a persistently targeted victim or a vulnerable or intimidated victim;
• A needs assessment to help work out what support you need;
• Information on what to expect from the criminal justice system;
• Be referred to organisations supporting
victims of crime;
• Be informed about the police investigation, such as if a suspect is arrested and charged and any bail conditions imposed;
• Make a Victim Personal Statement (VPS) to explain how the crime affected you;
• Read your VPS aloud or have it read aloud on your behalf, subject to the views of the court, if a defendant is found guilty;
• Be informed if the suspect is to be prosecuted or not or given an out of court disposal;
• Seek a review of the police or CPS’s decision not to prosecute in accordance with the National Police Chiefs Council (NPCC) and CPS Victims’ Right to Review schemes;
Be informed of the time, date and location and outcome of any court hearings;
• Be informed if you need to give evidence in court, what to expect and discuss what help and support you might need with the Witness Care Unit;
• Arrange a court familiarisation visit and enter the court through a different entrance from the suspect and sit in a separate waiting area where possible;
• Meet the CPS advocate and ask him or her questions about the court process where circumstances permit;
• Be informed of any appeal against the offender’s conviction or sentence;
• To opt into the Victim Contact Scheme (VCS) if the offender is sentenced to 12 months or more for a specified violent or sexual offence;
• If you opt in to the VCS to:
– make a VPS for consideration by the Parole Board if the offender is considered for release or transfer and apply to the Parole Board to read it out at the hearing;
– make representations about the conditions attached to the offender’s licence on release and be informed about any licence conditions relating to you;
• Apply for compensation under the Criminal Injuries Compensation Scheme;
• Receive information about Restorative Justice and how you can take part;
• Make a complaint if you do not receive the information and services you are entitled to, and to receive a full response from the relevant service provider.
To see the whole Code, go to https://www.gov.uk/government/publications/the-code-of-practice-for-victims-of-crimeThis also gives links to a leaflet about the code and a text of a note that is given to victims.
Reflecting on how measures set out in the Queen’s Speech 2015 may impact on the English Legal System
The Queen’s Speech sets out each year the bare bones of the proposed legislative programme for the forthcoming 12 months.
I’ve been looking through the detailed briefing to see whether there are issues which will affect the English Legal System (ELS) that may not be apparent from the speech itself.
Here are my personal comments:
Enterprise Bill.
The headline aim of the new Bill is to reduce red tape and improve the ways in which regulators work. But there are also two specific ELS related issues that may be noted:
- Establishing a Small Business Conciliation Service that will handle business-to-business disputes without the need for court action, tackling in particular, late payment issues;
Immigration Bill
Among proposed measures to be set out here, there are proposals to change the way in which immigration appeals work. In particular, the Government plans to:
Extend the principle of “deport first, appeal later” from just criminal cases, to all immigration cases. In 2014 thelast government cut the number of appeal rights but other than foreign criminals, migrants retain an in-countryright of appeal against the refusal of a human rights claim. We will now extend the “deport first, appeal later” principle to all cases, except where it will cause serious harm.
To create a presumption that suspects will be released without bail unless it is necessary.The Bill would initially limit pre-charge bail to 28 days, with an extension of up to three months, authorised by a senior police officer.In exceptional circumstances, the police will have to apply to the courts for an extension beyond three months, to be approved by a magistrate.This will introduce judicial oversight of the pre-charge bail process for the first time, increasing accountability and scrutiny in a way that is manageable for the courts.
Victims in the criminal justice system: getting the balance right
Successive governments have attempted to improve the position of the victims of crime in the criminal justice system. But there is clear evidence that there is still room for further improvement.
In January 2015, the Victims’ Commissioner, Baroness Newlove, published a report which showed the gap between what was supposed to happen to victims, and what actually happened. The principal recommendation of her report was the adoption of a set of principles, drawn up by her, to which all actors in the criminal justice system should adhere.
The Commissioner stated that all victims should have:
- Clear information from agencies and service providers on how they will support them in raising a concern or making a complaint about the service they have received
- Information on how informal concerns can be submitted and dealt with, in additional to processes for the submitting of formal complaints
- Details on how agencies and service providers will keep victims informed of the progress of their complaint at all stages
- The option to state their preferred method of communication with an agency or service provider when raising a concern or making a complaint
- Clear information to understand what to do if not happy with the response that has been received, including details about the role of the Parliamentary and Health Service Ombudsman and the right to complain to them
- Information on how they might be able to be involved in developing, reviewing and improving an agency’s or service provider’s complaints process.
In addition, she stated that agencies and service providers should ensure they offer to all victims:
- A clear statement about the support they will provide to victims who wish to raise a concern or make a complaint about the service that has been provided
- Processes to deal with concerns swiftly and informally where appropriate, in addition to processes to deal with more formal complaints
- A commitment that they will deliver mandatory training and development plans for all staff who deal with victims’ complaints
- A commitment to ensure that all staff who interact with victims, have in place a performance objective reflecting how they will be held accountable for treating victims with empathy, dignity and respect
- Properly defined processes and recording practices which enable victims complaints to be handled proactively and appropriately
- A published statement on whether they will apply the Parliamentary and Health Service Ombudsman’s Principles of Good Complaint Handling in their complaints processes
In addition, agencies should publish information illustrating how complaints from victims have led to improvements in services.
The Government announced in February 2015 that it accepted these proposals and would work to bring them into practical effect.
The Commissioner’s report is at http://victimscommissioner.org.uk/baroness-newlove-victims-still-let-down-by-justice-agencies/
The Government’s response is at https://www.gov.uk/government/news/response-to-the-victims-commissioners-review-of-complaints-and-resolution-for-victims-of-crime
In January 2015, the Government has announced that an online service TrackMyCrime, which has been developed by Avon and Somerset police, will start to be rolled out nationally. This is designed to keep victims updated on the progress of their case, allow them to submit details about stolen or damaged property, and find information on support and advice. Crucially, officers and victims can securely exchange messages with one another at any time and police can regularly update victims on the progress of the case. This offers more flexibility for victims and will be more efficient for police officers working shifts.
See https://www.gov.uk/government/news/online-tracking-service-launched-for-victims-of-crime
And in yet a further development, the Government has announced further support for victims and witnesses in court, through a doubling of the number of Registered Intermediaries – people able to support victims and witnesses as they give evidence in court.
See https://www.gov.uk/government/news/courtroom-communications-experts-to-double
Pre-recorded evidence trial
An issue which has received a lot of public attention in recent months is the way in which some witnesses in criminal trials are required to give their evidence. In a pilot experiment in three courts, including Kingston Crown Court, the most vulnerable victims and witnesses are able to give their evidence and be cross-examined away from the intense atmosphere of a live courtroom, in an attempt to spare them from what could be aggressive questioning in front of jury, judge and their alleged attacker.
People who may find it difficult to give their best possible evidence in a courtroom environment and all child victims will be considered for pre-trial cross-examination. This allows them to give their evidence and be cross-examined by both prosecution and defence barristers ahead of the trial, in front of a judge. The video recording is then shown to the jury as part of the trial. Previously victims could have been subject to lengthy, stressful questioning by multiple barristers in view of jurors and the public gallery.
This initiative follows the recent review of the Victims’ Charter.
If the pilot works, the new procedure will be rolled out across the country. This will be particularly relevant to cases involving the abuse of children and victims of rape and other assaults.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 