Written evidence from Transform Justice
Transform Justice is a national charity working for a fair, humane, open and effective justice system.
Does the bill put victims’ interests at the heart of the justice system?
The Bill’s aim is to “deliver a cultural shift in victims’ experiences by putting their interests at the heart of the justice system”.
Transform Justice is sceptical that victims’ interests can ever be central within a highly adversarial criminal justice system. Prosecution is by the state (or agreed by the state) in the public interest. In our adversarial system prosecutions do sometimes go ahead when the victim refuses to be a witness or where the victim is forced under court order to be a witness. This is not putting victims’ interests at the heart of the justice system, but progresses other aims such as crime prevention and public safety. The bill can and should seek ways to improve victims’ experience of the criminal justice process, but to say victims’ interests should be at the heart of the justice system is at odds with the principles of our current legal system.
The bill assumes that victims see the criminal justice system as the best and only way of achieving justice and resolution in their case. But research suggests that many victims who report crime do not want to engage with the criminal justice system. Some would like to use restorative justice; others seek counselling and/or simply to move on. Some people who are victims of crime do not identify themselves as such e.g., someone involved in a fight with someone they know. The harm caused to these victims can be resolved in a myriad of ways, many of which do not involve the criminal justice system.
Some crimes do require a formal criminal justice resolution and we need victims’ willing cooperation for state prosecution to be effective. Transform Justice recommends that the Bill makes clear that it focusses on the victims’ role within the criminal justice system, and ways of improving victims’ experience if and when they are involved in the formal criminal justice system. The government should, in parallel, find out what services/approaches are most effective in resolving the harm caused by crime regardless of whether or not a formal criminal justice route is taken.
The key changes to the Victims’ Code
It is not clear from the explanatory notes to the Bill exactly what changes are proposed to the Victims’ code itself so we have assumed that the changes mentioned in the government’s consultation response will be enacted.
CPS meeting victims
We are concerned by the proposed introduction of a duty requiring the Crown Prosecution Service (CPS) to meet with victims in certain cases before a hearing takes place, where the victim is willing to do so.
In our criminal justice system, the Crown Prosecution Service acts for the state, on behalf of the victim. They take a decision to charge and to prosecute in the public interest. Those decisions should be made on the basis of the strength of the case and the public interest in pursuing it. We understand that a victim may find a meeting with the CPS useful, but we are concerned by any suggestion that such a meeting might happen pre charge. The views of individual victims should not dictate whether prosecution proceeds with a case, though of course the harm done should be assessed in making an independent decision. A victim should always have a right to state their view and to appeal any decision not to proceed, but the decision to prosecute should be made on the facts of the case.
The risk of the prosecution taking individual victims’ views into account (as a result of a meeting pre-charge) is that it may bias what should be an independent, dispassionate decision. Two people may suffer the same crime but be affected in totally different ways, due to their personalities/history and their relationship with the accused. One alleged victim of common assault may be absolutely opposed to prosecution because the accused is their friend, while another wants revenge on their enemy. The injuries and the kind of fight they were involved in may be exactly the same. Should a prosecutor make a different decision according to the victims’ views? This would undermine the credibility of the law.
Community impact statements
We are wary about including community impact statements in the Victims’ Code until more is known about their impact. There is a dearth of research about community and victim impact statements. What role do they play in judicial decision making? Why do some victims and communities make them and not others? How satisfactory do victims and communities find the process of making them? Is this the best way of facilitating victim voice about the harm done? Until these issues are probed and analysed via independent social research, it is impossible to answer such questions.
Mental health tribunals
We are not convinced that the proposal to introduce victim personal statements in the Mental Health Tribunal is evidence-based and will be effective. This policy suggestion was based on research with just nine victims, all family members of those killed by mentally disordered offenders. We think this is too small a sample size on which to base conclusions, and that further research needs to be done with more victims and with victims of other kinds of crime. Any person who has been sectioned is deemed to lack capacity for their actions. Given this, we question the purpose and impact of a victim impact statement. We urge the government to focus their efforts on researching the effectiveness of other ways of resolving the harm caused by someone who is seriously mentally ill. All victims need help and support to move on in their lives, but we are not convinced that the delivery of a victim impact statement to someone who is seriously mentally ill will achieve the resolution victims seek.
Omissions from the Bill
We think there are some significant omissions from the Bill
1) Restorative Justice. There is very strong research evidence that well-conducted restorative justice helps victims resolve the harm done by crime in a way the criminal justice system cannot achieve. Restorative justice can be done either instead of criminal justice processes, or in parallel with criminal justice processes or as part of a criminal justice sanction. We think the Victims’ Code should include a right for the victim to seek a restorative justice outcome. Restorative justice only usually works if the person who did the crime cooperates, but the victim should have the right to seek that resolution.
2) Meaningful feedback mechanisms. Complaints mechanisms and inspectorate reports provide some opportunity for feedback, but they will never reveal the full picture of victim satisfaction with the system. This can only be achieved through proper research and monitoring, using accredited social science principles. Currently the crime survey for England and Wales surveys a nationally representative sample of victims but does not ask sufficiently detailed questions about victim’s experiences. We recommend either that the crime survey is enhanced or that a new annual survey is done with victims of all kinds, including those whose crime was not resolved and those who decided at some point not to engage with the criminal justice system.
3) Amendment of Crime & Disorder Act 1988 (CDA 1988) to compel witnesses to give evidence. The act empowers the magistrates’ court to issue summonses for witnesses to attend court to give evidence under oath (to give “depositions”). The CDA 1988 also ultimately empowers the court to impose sanctions should witnesses “unreasonably refuse” to answer questions. If the needs and wants of victims are to be more central to the criminal justice system, victims should not be forced to give evidence nor be sanctioned if they do not want to answer questions. Victims should have agency and be allowed to withdraw from the process. Thousands choose to, and do, stop engaging with the criminal justice system (as witness attrition rates attest) every year so it is unjust to force a minority of such victims into court.