Written evidence from Ben Lyon and Gabrielle Brown
“Putting victims’ interests at the heart of the justice system”
Our first and overarching concern is that the Bill as published appears to restrict the rights of victims, as opposed to enhancing, defining them, or giving them real force in law. The latest Victim Code of Conduct (VCOP) published in 2020, sets out 12 “Rights” for victims, whereas this act specifies 4 “Principles.” The language and the tenor of the Bill is in the subjunctive, e.g., these principles “should be” provided (see Section2 (2)). This sense of caution permeates throughout the Bill, the intention of which appears to protect and exempt the CJS agencies rather than confirm the positive rights of victims.
At section 2 (3), we find that “The code may restrict the application of its provisions to specified descriptions of victims; and victims of specified offences or descriptions of conduct”.
The Bill goes on to do just this. It concentrates on specifying victim support in cases of just 3 types of crime, (and does so well, in face of a long - recognised deficit).
The defensive nature of the Act continues in Section 6, where we learn that “The code may not require anything to be done by— (a) a person acting in a judicial capacity; or (b) a person acting in the discharge of a function of a member of the Crown Prosecution Service which involves the exercise of a discretion.”
This measure effectively gives carte blanche exemptions to two agencies which have given most cause concern to the treatment of victims. The independence of the judiciary is well respected, but the wording of this sub paragraph will be used to exempt all court practices and failings. The exemption for the Crown Prosecution Service is likewise complete, as every action or decision “involves the exercise of a discretion.” This Act might be better entitled “The Protection of CJS Agencies - Legal Proceedings Act.”
Perhaps the most worrying factor in this bill as drafted is that it has no force, there are no sanctions. The effect of non-compliance is straightforward – there is none:
“Section 4 - Effect of non-compliance:
(1) If a person fails to perform a duty imposed on that person by a code issued under section 2, the failure does not of itself make that person liable to criminal or civil proceedings.”
Thus, this legislation would further deny the victim access to the protection of the law. If the police had even responded to their initial complaint, then investigated it, then decided to proceed with it, then had negotiated the probability requirements of the CPS – there will be no penalty for ignoring victim’s access to justice.
An exemption from the criminal law is an all-embracing power. If a law officer fails to read their guidance, or abide by the rights set out in VCOP, then the offence of Misconduct In Public Office surely comes into consideration? Except where they have a blanket defence against incompetence or misconduct – in The Victim Law of all places.
The ban on access to civil proceedings is even more concerning. Civil law has always been available to citizens, when individuals are wronged, and victims of crime have been wronged and harmed. The majority of victims are not offered the opportunity of access to the criminal courts, therefore access to civil law is essential. If the failure or refusal of service amounts to a breach of the Code, then victims should have access to the civil courts.
Provision of victim support services:
We are told that:
“For the purposes of section 6 “victim support services” means services, other than accommodation-based support, provided to support persons who are victims of (a) domestic abuse, (b) a sexual offence, or (c) serious violence.”
These services and the associated regulations are to be welcomed, but they are discriminatory and exclusive. Offences of violence against women are of epidemic proportion and need addressing. What happens to all the victims of all the other offences? It would seem that they are to be excluded from such services.
If this exclusion was based upon an objective assessment of a victim’s needs
and risks, then there would be some reason for prioritising services. Indeed, one of the rights quoted in VCOP states:
“RIGHT 4 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.”
This Act would be in contradiction to this “Right,” which is the basis on which a fair and equitable provision of support depends.
Right to be heard:
“must make provision for services which reflect the principles that victims—
(i) should be provided with information to help them understand the criminal justice process;
(ii) should be able to access services which support them (including, where appropriate, specialist services);
(iii) should have the opportunity to make their views heard in the criminal justice process;
(iv) should be able to challenge decisions which have a direct impact on them”
Yet there is nothing in this draft to support the last two items. We have found in countless dealings and research with victims that it is the relentless dismissal of their views and contempt of their position in law that offends them most. This turns them away from the CJS and court system.
We have long campaigned for the legal representation of those victims who have their reputations attacked in court, who are prevented from urgent therapy by the seizure and disclosure of their treatment notes, and the long-term abuse of their telephones and data. We are aware that the legal establishment is not yet ready for any such measure. It could be done, and it would ensure fair justice for all concerned, but experience tells us that justice is finely balanced – in favour of the offender.
There is no mention of the provision of Victim Personal Statements. Nor of any right to present these in court, similarly there is no mention of any right to make representation at Parole hearings.
There is no mention of the protection from intrusive and unnecessary data seizure and disclosure of victim’s personal and sensitive data, nor of their right to have their property returned.
There is no mention of, or remedy for, the seizure and disclosure of therapy notes and medical history. This gross intervention into the privacy of victims prevents traumatised victims accessing treatment yet remains unprotected by law.
There is no mention of any one person or agency who would have the duty, or even the power in law to review individual cases. This is an essential measure to redress the power imbalance for victims.
In Conclusion- Efficacy and Futility:
There is a term in the world of medical research when a new drug or measure is about to be launched, when lives may be at risk and much money too. It is time for the Efficacy and Futility Review. Does this new drug work – and is it worthwhile compared to existing measures?
Given the parlous state of the Criminal Justice Service in relation to victims, will this Bill improve their experience and outcomes? If this Bill were to be enacted in its present form, would it be an improvement and be worthwhile?
We thought about using these proposals as a template for all the cases and situations that have gone wrong and considered if there would have been an improvement. Sadly, the answer was “no.” We maintain that there is much work and attitudinal change needed to make this Bill effective.
We wish to thank the committee for this open invitation to comment on the proposed legislation. The advocacy path to a Victims Law has been long and demanding for us and many others. We wish them well with their deliberations.
Ben Lyon has a long experience of working with and for victims, within the Metropolitan Police, the Victim Liaison Service (National Probation Service), and as a Restorative Justice practitioner and researcher. He has worked for ‘RJ for All’ internationally and within the UK. He has advocated for self-empowerment and self-assessment for victims when accessing restorative justice and was the Chair of the Victims’ Scrutiny Panel for the MOPAC RJ service.
Gabrielle Browne had her own experience of serious sexual assault and subsequent problematic experiences with the CJS. She has since advocated for the rights of victims, whilst consulting with government ministers, ministries and agencies towards positive outcomes for victims. She has appeared regularly in the media as a champion on issues relating to violence against women. Gabrielle was re-elected as a Chair of the MOPAC Victim Reference Group.
They have both supported and served with ‘Restorative Justice 4 All’ and are long term advocates and business partners in ‘Articulate Arguments.’