This response is also based on our previous policy work promoting access to restorative justice for victims and improving outcomes for victims who are children and young adults and/or are from Black, Asian and ethnic minority communities.[2]

3. Our recommendations to improve the draft Victims Bill (referred to as ‘the Bill’) are set out below, which we hope help to inform the Committee’s pre-legislative scrutiny.

Recommendations

The four overarching principles of the Victims’ Code (referred to as ‘the Code’) set out in the Bill should be expanded to better reflect all 12 entitlements in the current Code. Agencies should have a statutory duty to comply with the Code’s entitlements.
The Victims’ Commissioner’s powers should be strengthened to provide national oversight of the operation of the Code, and to bring their powers in line with other relevant commissioners.
Criminal justice bodies have a duty to report on how they’re meeting the needs of victims from minoritised groups.
Victims should have a statutory entitlement to be informed about restorative justice (RJ) and how to access RJ, and a statutory right to be automatically referred to an RJ service.
The government should reintroduce a national RJ action plan, which sets out how access, awareness and capacity will be improved within the criminal justice system. The government should publish its annual progress against this action plan. A new plan should be developed and laid before Parliament at least every five years.
A single, cross-system complaints service and an independent and impartial Victims’ Ombudsman should be established.
The MoJ should more widely promote the guidance for commissioners on supporting victims of crime from Black, Asian and minority ethnic backgrounds including publishing it on the gov.uk website.

The Victims’ Code

The Government’s proposal to put the overarching principles of the Victims’ Code in primary legislation and set out key entitlements in secondary legislation, consulting on changes to the Code once the Bill is in force.

4. The Code sets out 12 ‘rights’ that victims are entitled to and outlines the minimum standard that agencies must provide to victims of crime in England and Wales. The Bill enshrines four overarching principles of the Code in primary legislation, which have been deduced from the 12 ‘rights’. The full 12 Code entitlements will be set out in regulations. The government have stated this is to allow more flexibility to amend the Code to reflect any changes in policy or practice in the future without the need for primary legislation.

5. The CJA does not agree that only the four key principles, which have been deduced from the full Code, should be enshrined in primary legislation. Members told us that the four proposed principles are too broad and unclear. Key entitlements that are included in the full Code — such as a victims’ right to be informed about compensation, the complaints process, to have their case progressed without unjustified delay and to have their property returned — are not reflected in the four principles. Members are concerned that distilling victims’ entitlements from 12 rights to four key principles risks diluting rather than strengthening them. In addition to our members, during the MoJ’s ‘Delivering Justice for Victims’ consultation, nearly half (44%) of respondents were in full or partial disagreement that these four principles were the right ones.[3] We recommend the four principles are expanded to better reflect the entitlements in the current Code.

6. The MoJ have acknowledged that criminal justice agencies compliance with the Code has been weak.[4] Members tell us that more can be done to strengthen compliance with the Code:

The Bill should place a statutory duty on all agencies listed in the Code to comply with these entitlements, as well as informing victims of their entitlements under the Code.
There should be clear enforcement mechanisms for agencies with duties under the Code.
The Code is clear that it sets out statutory rights which are guaranteed.
Sufficient resources and investment should be available to criminal justice agencies so that all victims can access their entitlements. This would remove the ‘postcode lottery’ that can occur.[5]

Scrutiny, accountability and oversight

The Government’s proposals to amend the role of the Victims’ Commissioner.

7. The draft Bill requires the Victims’ Commissioner to lay their annual report in Parliament to increase the parliamentary and public focus on victims’ experiences. It will also require relevant agencies and departments to respond to the Victims’ Commissioner’s recommendations which are made in its annual report. The agency or department will have to publish its response to the recommendation within 56 days of the annual report being published. We welcome these provisions.

8. The draft Bill transfers the function of reviewing the operation of the Code from the Victims’ Commissioner to PCCs. It does this by introducing a duty for PCCs and omitting this function from the Victims’ Commissioner’s current legislation.[6] The government have stated that the Victims’ Commissioner will retain a role in the national oversight of the Code through their other functions (such as a duty for agencies to respond to recommendations). However, there will no longer be an explicit statutory duty for the Victims’ Commissioner to review the operation of the Code. While we agree that PCCs are best placed to monitor the day-to-day compliance with the Code at a local level, we do not agree that this function should be omitted from the Victims Commissioner’s powers entirely. Instead, this function should be retained and amended to refer to reviewing the operation of the Code at a national level.

9. The MoJ should strengthen the Victims’ Commissioners’ powers to bring them in line with other relevant commissioners to enable more effective scrutiny, accountability and oversight. We recommend that the Bill provides for the Victims’ Commissioner to have explicit powers to:

Monitor the operation of the Code at a national level (see paragraph 8 above).
Access information from the agencies named in the Code, and the data and victim feedback collected by PCCs, as is reasonable to perform the Commissioner’s statutory functions.
Review and recommend changes to the Code if it is found to be inadequate and to recommend changes to the law.

We also recommend that the following duties are provided for:

A duty for relevant agencies named in the Code to co-operate with the Commissioner’s consultations, reviews, research and other work relevant to carrying out their functions.
A duty for the Secretary of State to consult with the Victims’ Commissioner (not just the Attorney General) on any proposed changes to the Code.[7]

The Government’s proposals on the role of the inspectorates, including an improved focus on victims, and a new power for the Government to direct aspects of their work.

10. We welcome the Bill’s aim of strengthening the criminal justice inspectorates’ focus on the experiences and treatment of victims. This increased focus is particularly welcomed with HM Inspectorate of Prisons, as members tell us the identification of those who have been victims in the community and are now in prison, and their access to support and interventions is an overlooked area.[8]

11. The Bill also creates a new power for the Home Secretary, Lord Chancellor and Attorney General to act jointly to direct and require criminal justice inspectorates to carry out a joint inspection to assess victims’ experiences and treatment. Under this power, the key issues that should be considered whilst carrying out that inspection can be specified, as well as when the inspection should be carried out. The inspectorates being able to set their own inspection programme and inspection framework is vital to their independence. The criminal justice inspectorates already have a statutory requirement to consult the Secretary of State and other specified bodies on their inspection plans; and the Secretary of State already has the power to direct some chief inspectors to report on specific issues related to the agencies they inspect. We are concerned this new power to direct aspects of the inspectorates’ work may undermine their full independence from the government. Inspectorates could be better placed to use their on-the-ground, specialist expertise to determine the direction and timing of inspections to best contribute to improving outcomes for victims.

12. If the criminal justice inspectorates are required to conduct more inspections under this power, more funding and resource should be provided.

The delivery of the Victims’ Code

The Government proposals to place a duty on the relevant criminal justice agencies (the police, the Crown Prosecution Service, HM Courts & Tribunals Service, Youth Offending Teams and HM Prison and Probation Service) to collect data and keep under review their delivery of the Code.

13. The Bill transfers the function of reviewing the operation of the Code from the Victims’ Commissioner to PCCs, by placing a duty on PCCs to review relevant criminal justice bodies’ compliance with the Code at a local level, in order to strengthen local responsibility for improving victims’ experiences. The Bill also provides for PCCs and agencies to monitor data on compliance with the Code, which should be contextualised by feedback from victims. The government aims to pass regulations which set out what data should be collected to provide consistency across England and Wales. The MoJ have stated that compliance data will be monitored at a national and local level by cross-criminal justice system governance structures.

14. The CJA carried out a survey of PCCs and commissioned victim services in January 2022 regarding how data on victim’s protected characteristics was collected. We found there were inconsistencies on what data is collected; which agency collects the data (whether this is the PCC, the police, other criminal justice agencies or the commissioned service itself); how the data was collected; and how this data was then used to improve support services for victims. These inconsistencies were sometimes made worse by each commissioned service having different monitoring and reporting requirements. Respondents told us there was a need for more consistent and standardised data collection and better data collection and visualisation tools. We recommend that any data collected by PCCs can be disaggregated by victims’ protected characteristics, in order to identify any disparities in different groups’ experiences of the Code.

15. We recommend criminal justice bodies have a duty to report to PCCs on how they’re meeting the needs of victims from minoritised groups, which includes commissioning specialist services.[9]

Commissioning victim support services

Whether the legislative steps proposed by the Government will lead to an improvement in the commissioning of support services?

Our previous work has focused on the experiences of our members who provide specialised services to victims from minoritised communities and their barriers to commissioning.[10] We expect to see some improvement in the commissioning of specialist support services following the steps that have been set out:

We welcome the duty on Police and Crime Commissioners, health bodies and local authorities to collaborate when commissioning support services for victims, which aims to facilitate more effective, co-ordinated support locally.
We also welcome that local commissioning strategies are required to be published, and the government’s intention to set up a national oversight group to consider these. We recommend that the Victims’ Commissioner sits on this group, as per their independent national oversight role. As well as publishing the strategy, we recommend that documentation showing compliance with the Public Sector Equality Duty (section 149 of the Equality Act) is also published. An equalities expert should also sit on the national oversight group.
We particularly welcome that the strategies are required to be informed by needs assessments (our members told us more PCCs needed to conduct needs assessments) and that specific consideration will be given to the service needs of victims who may experience barriers to using generic support services due to their protected characteristics, such as age and race.

17. We also welcome the new Victims Funding Strategy (VFS) which sets out a commissioning framework to provide longer-term, sustainable funding and to drive consistent investment in victims’ services.[11] Members that work with minoritised communities have reported the need for greater and more sustainable investment and resources, including core funding, rather than ‘one-off’ short-term funded projects.

18. The focus on commissioning ‘by and for’ specialist victims services and making the commissioning process more accessible is welcomed. Members told us that small, specialised services are currently hindered by prohibitive commissioning arrangements and that grants, rather than contracts, are more appropriate for such specific grassroots organisations.

19. There are areas where the MoJ could go further. For example, by not only introducing a duty for PCCs to work together locally with health bodies and local authorities, but also introducing a duty to collaborate and co-commission specialist victim services with PCCs in neighbouring regions, which would mean those services were available to a greater number of people. For example, one member we consulted with provides specialist support to children and young adult victims. They have reported a huge demand for its service funded to work in one region, yet there are no funded services for children and young adults in the surrounding areas who they have to turn away from their service. Demand for specialist victim services for specific groups, for example Bangladeshi women, might be low in one area and seen as too niche, but could be funded through co-commissioning to provide support in neighbouring areas. A duty to co-commission across regions could fill gaps in local services.

20. In addition, members have previously told us that in order to improve commissioning of victims’ services, PCCs should:

Proactively give feedback to small, specialist services who are unsuccessful in current commissioning processes to increase their chances of success in future bids.
Increase victims’ and criminal justice agencies’ low awareness of specialist services which results in less referrals and victims being sent to generalist services when their needs would be better met with an existing specialist service.
Set up ring-fenced budgets to fund specialist support services for victims with protected characteristics.

21. The VFS encourages commissioners to adopt standards set out in MoJ’s guidance on supporting victims of crime from Black, Asian and minority ethnic backgrounds. In our recent survey of PCC offices, we found that only some PCCs were implementing this guidance. The guidance is not widely available – it is not published on the gov.uk website and some of our members that provide specialist victim services are unaware of it. We recommend that this guidance is published so it is accessible to all agencies with commissioning powers and victim services, especially as it is now referenced in the VFS.

22. The MoJ acknowledge that the success of the VFS relies on its effective implementation and a cross-government oversight board will be established. We recommend the MoJ publishes annual updates on the implementation of the VFS.

Further measures that should be included in the Bill

Restorative justice

23. We are very concerned that there is no mention of restorative justice (RJ) in the draft Bill. RJ has huge potential to increase victims’ satisfaction, improve their wellbeing and reduce reoffending. These benefits are well-evidenced, including by the Justice Select Committee in their 2016 inquiry into RJ, the cross-party APPG on Restorative Justice’s 2021 report and CJA’s recent report on increasing RJ across England and Wales: [12]

Numerous studies have shown victims who are given the opportunity to engage with RJ are more satisfied than those who only experience the criminal justice system.
A study shows that a victim is almost seven times more likely to receive an apology from the person that caused them harm through RJ than in court.
Home Office research found that 85 percent of victims participating in RJ were satisfied with their experience; 20 percent more than the control group. Almost nine in ten would recommend it to other victims.
Various studies show a reduction in reoffending of between 14 to 34 percent following RJ, reducing the likelihood of future victims.

24. We welcome the government’s commitment to make information about RJ more consistently available for victims of crime.[13] The right to receive information is already an entitlement in the Code (although this is not reflected in the four overarching principles). We recommend that the Code is strengthened so victims also have a statutory entitlement to access RJ, as is recommended by the Victim’s Commissioner.[14] We support CJA member Why me?’s recommendation that access to RJ should be a statutory right of its own, rather than a subsection of the right to be informed.[15] In addition, we recommend victims should have an entitlement to be automatically referred to an RJ service. RJ services are best placed to explain what it offers and its benefits (as opposed to the police or another criminal justice agency) and can then offer support to a victim if they decide to take up RJ in the future.

25. The government have committed to conducting a ‘pilot’ to understand where there are gaps in provision in order to make access to RJ more consistent.[16] Numerous reports already show the ‘postcode lottery’ victims face in accessing RJ (including the Committee’s 2016 inquiry report) and the variations in funding provided by different PCCs. We would like to see the MoJ implementing solutions to address these variations in access, rather than carrying out more research, which could delay a more consistent approach being developed across England and Wales.

Key findings from the CJA’s 2019 report into restorative justice provision:[17]

RJ received financial backing from the MoJ through allocated funding given to PCCs between 2013 and 2016. However, since this allocation ended PCCs now decide how much to invest in RJ, which leads to inconsistencies in provision.
RJ services are hampered by low referral rates, which are a symptom of low awareness of restorative interventions across the CJS. Forty percent of survey respondents indicated that services are challenged by low referral rates. Only a minority of RJ providers in PCC areas were obligated to raise awareness through contractual arrangements.
The benefits of RJ are often misunderstood (including by criminal justice agencies such as the police), which disguises its potential to improve victims’ well-being and satisfaction and reduce reoffending.
More partnership working is needed to overcome operational challenges facing RJ services, such as limited information-sharing and ineffective referral pathways.
Many RJ services struggle to define how they are effective and demonstrate success. Commissioning targets do not necessarily reflect the hugely positive effects of restorative inventions, even those that do not result in a ‘fully’ restorative outcome, such as a ‘victim-offender’ meeting or a conference.
There is a lack of strong, consistent and committed leadership on RJ from PCCs, chief constables, prison governors and government ministers.

26. The MoJ has not had a national action plan on RJ since 2018. We recommend that the government reintroduce a national action plan, which sets out how access, awareness and capacity of RJ will be improved within the CJS. The national action plan should be prepared and laid before parliament at least every five years, with progress against the plan published annually. This was recommended by the APPG on Restorative Justice and has cross-party and independent support from the Victims’ Commissioner, Police and Crime Commissioner Katy Bourne OBE and several peers in the House of Lords (see quotes below).[18] Without a national action plan across the Home Office and the MoJ, the inconsistencies in RJ provision will continue.

The Victims’ Commissioner for England and Wales, Dame Vera Baird QC, said:

‘Despite a clear entitlement in the Victims’ Code for victims to have Restorative Justice explained to them, this rarely happens in practice. [Introducing an action plan in legislation] will help improve access and awareness of Restorative Justice and I’m happy to add my support.’

Katy Bourne OBE, Police and Crime Commissioner for Sussex, said: ‘I know from my own investment in Restorative Justice and practices in Sussex that it improves victim satisfaction and wellbeing, as well as reduces re-offending… I fully support any measures to improve access, awareness, capacity and evidence for the use of Restorative Justice and practices across the country. The last national action plan for Restorative Justice ended in 2018 and unfortunately has not been renewed, leading to a less cohesive service for victims to access. [Introducing an action plan in legislation] provides an opportunity to re-establish some strategic oversight and re-galvanise Restorative Justice as a readily available offer for all victims of crime.’

Baroness Molly Meacher, a crossbench peer in the House of Lords and former Acting Chair of the Police Complaints Authority, said: ‘I have been convinced for many years of the value of Restorative Justice…the aim is to increase and improve its use by ensuring regular national action plans are produced by the Home Office and Ministry of Justice. This will also help to raise awareness of how Restorative Justice and practices work more widely with the public and across the criminal justice sector.'

In addition, the government has publicly committed to a Council of Europe (CoE) declaration on the role of RJ in criminal justice that also encourages member states (which includes the UK) to develop a national action plan.[19] Justice departments in both Scotland and Northern Ireland have an RJ action plan or strategy in place.[20]

27. The CJA and Why me? have previously called for a national RJ action plan to be provided for in the Police, Crime, Sentencing and Courts Act 2022.[21] In response to the tabled amendment which would require the Secretary of State to prepare an action plan every three years, lay this action plan before Parliament and report on progress against it, the government recognised the importance and benefits of RJ, but referred to an action plan which would provide strategic oversight as a ‘bureaucratic burden’.[22] A new amendment was tabled increasing the time frame to every five years, however the government gave the same reason for not supporting it, despite stating its commitment to restorative justice. Our view is that there should be a statutory action plan in order to make sure they are continually developed and published at least every five years.

A single cross-agency complaint process and national oversight

28. We welcome the removal of the need for victims of crime to raise a complaint via a Member of

Parliament (MP) before it can be investigated by the Parliamentary and Health Service

Ombudsman (PHSO).

29. However, the Bill needs to go further to make the complaints system more accessible to victims. Members have found that current complaints processes are often too varied and confusing and do not provide sufficient redress. For example:

Victims will encounter many agencies during any investigation, each with their own complaints system, which are often varied and hard to navigate. Victims do not necessarily distinguish between different criminal justice agencies, which adds to the confusion between the different complaints processes. Often agencies will apportion blame to each other when using their individual complaints process, which doesn’t provide resolution.
Even without having to make a complaint through an MP, members report that the role of the PHSO in the complaints system is poorly understood by victims, with many unaware of how to navigate the procedure.[23]
Different complaints processes mean there is no overarching view of recurring issues and as such, systemic issues don’t get resolved.

30. To improve victims’ experience of complaints processes, members would like to see one central complaints mechanism where victims of any crime can easily file a complaint in relation to any criminal justice agency and any right under the Code. We therefore recommend that a single, cross-agency complaints service is established, which accepts and investigates complaints from victims about any part of their experience and regarding any agency with responsibilities under the Code. The Victims’ Commissioner has also previously recommended that a single cross-criminal justice system complaints body should be established for handling all victim complaints.[24]

31. Some responses to the MoJ’s ‘Delivering Justice for Victims’ consultation suggested establishing an oversight body to oversee complaints.[25] The PHSO has an oversight role, however the MoJ have stated it is not frequently utilised by victims. Data obtained by member Victim Support shows that only a very small number of the complaints that the PHSO receives relate to the Code, and an even smaller number are investigated and fully upheld.[26] As such, national oversight of victims’ complaints needs to be improved.

32. The CJA have previously recommended that a Victims’ Ombudsman should be established which has the power to investigate and resolve victims’ complaints if they remain unsatisfied and has national oversight of all complaints.[27] The Ombudsman should be operationally independent from the government, the Victims’ Commissioner and from other agencies who have responsibilities under the Code. It should have a duty to co-operate with other bodies who have previously been involved in investigating victims’ complaints. The Ombudsman should also:

Identify any thematic, systemic issues across the criminal justice system. The Ombudsman should be able to make recommendations regarding systemic issues and gaps between agencies to prevent future recurrence, as well as recommendations relating to individual complaint investigations.
Collect demographic data on victims who file complaints, which should be analysed and published in the Ombudsman’s annual report.
Develop a process for victims who allege to have experienced negative consequences as the result of lodging a complaint (for example, their case not being taken further due to them filing a complaint against the police).
Provide clear information to victims that if they remain unsatisfied with the handling of a complaint by the Ombudsman, they can complain to the PHSO. This escalation process is used in other areas of the criminal justice system, such as by the Prisons and Probation Ombudsman.[28]

The views expressed in this response are not necessarily those of any individual CJA member or funder.

For more information, please contact Hannah Pittaway, Senior Policy Officer.

June 2022