Written evidence submitted by Rape Crisis England & Wales (VIC0061)
This written evidence is submitted by Rape Crisis England & Wales (RCEW) to the Justice Select Committee Call for Evidence on the pre-legislative scrutiny of the draft Victims Bill.
About Rape Crisis England & Wales (RCEW)
Rape Crisis England & Wales (RCEW) is the national membership organisation for a network of 39 autonomous member Rape Crisis Centres working across 49 geographical locations in England and Wales. Rape Crisis Centres provide immediate and longer-term specialist trauma informed services for adults and children who have experienced sexual violence and abuse (SVA) at any time in their lives. Rape Crisis member Centres are independent organisations and are registered charities.
Rape Crisis centres deal with all forms of SVA including but not limited to: rape, sexual assault, sexual harassment, child sexual abuse (CSA) including child sexual exploitation (CSE), SVA within domestic abuse, institutional SVA. Centres work with a range of survivors including families of survivors, women and girls, men and boys, Black and Minoritised survivors and those who require interpreters.
Consideration of context
The Bill’s definition of Victim
As stated in the initial consultation response provided by RCEW, which we repeat below, we propose that the Government adopt the approach proposed by the Victims’ Commissioner for England and Wales in her recent paper on a Victims’ Law and redefine the role of the survivor in the CJS from bystander to participant. This change in status would necessitate a change in culture whereby survivors are seen as (rightfully) central to the CJS. Accompanied by watertight provisions guaranteeing survivors certain rights as they progress through the system, survivors may only then see that their rights are indeed rights, not favours.
The State of Victoria, Australia, moved to recognise victim-survivors as participants in 2018 with the aim of ensuring better treatment of victim-survivors. It would appear that the Government’s intention, through creating a Victims’ Law, is the same, and we therefore recommend the same approach.
As set out by the State of Victoria Law Reform Commission: “…the role of the victim should be conceptualised, understood and implemented in accordance with modern jurisprudence. In the modern trial, there is a triangulation of interests: those of the public, the accused and the victim. Within that triangulation, the interest of the victim in the criminal trial is not that of a party; but it is that of a participant”.
This is needed within the Bill, as at present there is no clear, definition of the role of the victim-survivor in a case. A new statute within the Bill would encourage and develop a culture whereby victim-survivors are central to and are given a voice in the justice system. This should act as a means to strengthen victim entitlements and clarify what victims should expect from the criminal justice system. This could be truly transformative, as this would support better relationships between the police, CPS and the victim-survivor.
This is a serious concern due to the Government’s track record of excluding migrant victim-survivors of VAWG from protection on the basis of their immigration status. We support Latin American Women’s Rights Service and the Step Up Migrant Women Campaign that has suggested an amendment to the bill; a firewall between statutory services and immigration enforcement. In addition, the Government’s recent commitment to ratify the Istanbul Convention with exceptions to Migrant Women demonstrates the need to ensure that the Bill explicitly supports provision for Migrant and other Minoritised groups. It is unacceptable that migrant women and girls facing the most egregious crimes of sexual violence and abuse, should be further marginalised because of their status. For the Bill to be truly transformative it must ensure that migrant victims of crime have equal access to the Criminal Justice System and support services.
The Bill and the Code
a) Lack of accountability: Victims and survivors of rape and sexual abuse are currently frequently denied their rights under the Code, and the justice system regularly fails them. We are concerned that the draft Bill will do little to change this, as sanctions and implication for no compliance to the Code remain unclear. The draft Bill does not afford any clarity as to the process to be followed for holding agencies to account in following the Code, once it is enshrined into law. We would appreciate clarity on accountability structures, and how these will differ from what is already in place. In our view Clause 2 of the Bill does not go far enough, and without sanction in place the Code will continue to be systematically ignored by justice agencies.
b) Resourcing the CJS and specialist sexual violence and abuse services: We are concerned that the Bill is not tackling one of the root causes of issues in the CJS. In order to improve compliance with the Code, agencies must be properly funded and resourced to enable them to employ and train the necessary staff to deal with cases and ensure that survivors are treated well, and in accordance with the Code. Agencies have been impacted by cuts in the name of austerity over the past decade. Without addressing this issue, new legislation could be futile.
The key changes the Government should consider making to the Victims’ Code, including consideration of those already proposed by the Government in its response to the consultation
If all agencies in contact with a survivor made it their responsibility to ensure survivors are properly informed about their rights under the Code, survivors would quickly become aware of the Code. Member centres have told us that police officers often tend to assume that ISVAs are responsible for informing survivors of the Code and their rights. However, it should not be left to one agency, especially a non-statutory one, to ensure that survivors obtain this information. Not all survivors will want a referral to an ISVA or other support service. Even those referred will not necessarily accept the referral. This creates issues whereby survivors are left uninformed. It’s the responsibility of everyone involved in the CJS to ensure survivors are informed. This can be as simple as ensuring there is information/links to the Code on all correspondence to survivors, or ensuring that staff always conduct a sort of ‘informed choices’ session with survivors they first come into contact with, to ensure they know their rights. A single Government-funded website/booklet containing the relevant information could also go a long way in ensuring everyone can receive the same information, if all agencies signposted to it.
Building a relationship with a survivor should be a priority for police and CPS professionals and we believe, as set out above, that changing the status of survivors to ‘participants’ in the CJS will naturally assist with this. In the meantime, we would support an explicit requirement for the prosecutor in a case to meet with the survivor in the case, both before any charging decision is made, and definitely at least once before the case proceeds to trial. Often, prosecutors do not even meet the survivors whose cases they are working on.
For example, this has been implemented on a local level by one of our member centre in the North East (Arch Teesside) who meet with the CPS in their region on a regular basis. They were able to successfully engage with the CPS and implement a post-charge meeting between the survivor and the CPS RASSO lawyer after the defendant was charged. We've heard that this arrangement is welcomed as a way to break down barriers and give survivors a chance to be heard and ask questions of the CPS. this has started to make survivors feel more involved and central to the process. This also helps survivors feel like they have gained some control by giving them the option to meet, which can be extremely beneficial for them going forward.
Furthermore, better communication with survivors can lead to perceived issues in the case being ironed out early on, improving investigation quality and timeliness. For example, we are aware of one case where there was confusion amongst CPS and police staff as to the survivor’s continued contact with her alleged perpetrator, despite claims that she was not. The complainant in the case had been in contact via text with an individual with the same name as her alleged perpetrator. Rather than speaking to the survivor about the perceived issue and giving her the opportunity to explain before making a decision, the case was closed through the CPS offering no evidence. Changing the Code in the way proposed by the Government, to make it a requirement for the prosecutor to meet with the survivor pre-charging decision, would potentially have led to a prosecution in this case. Another issue highlighted by the above example is the offering of no evidence by prosecutors. Offering no evidence removes a survivor’s option to have CPS decisions independently reviewed and cases reopened. We submit that this is a draconian measure which hinders the proper administration of justice. In 2019/20, the CPS made 91,912 decisions that could have been subject to review; they received 1,996 requests for reviews and overturned 288 decisions. This data proves that the CPS do not always get it right, and there should always be an option for survivors to request decisions not to proceed with a case be reviewed and reversed. We submit that the Victims’ Law should explicitly prevent CPS from offering no evidence in cases.
Please read our views outlined below, as previously stated in our initial consultation response:
a) Informing victims of their right to review: As set out in our ‘Decriminalisation of Rape’ report, it is very common in rape cases for police not to inform women of the VRR procedures. We suggest the Victims’ Law put a clear duty on police and CPS to ensure that survivors know that they have a right to review any decision not to charge/proceed with a charge. One member centre told us that survivors have reported officers telling them “not to bother” with a VRR, as the decision will be the same. This is unacceptable, but also potentially true, given the lack of independent scrutiny of appeals. One Rape Crisis ISVA reflects on the Criminal Justice System’s disregard for the Victims Code and challenges with the current VRR scheme;
‘Information around Victims Right to Review (VRR) is often not communicated clearly and -survivors are not informed of their rights and entitlements within the system. We are deeply concerned about survivors experiences where they do not have an access to an ISVA and will therefore not be informed of what they should have a right to expect, as well as their right to a VRR and to complain about any poor practice or investigative failings.’
b) Independence: Currently CPS and police reviews are conducted in the same force/CPS office as made the initial decision. For police reviews, an officer at least one rank higher than the decision maker, who has not had any involvement in the investigation, will conduct the review. This is the only stage of appeal available, unless a survivor is able to fund and navigate the judicial review process. For CPS VRRs, a prosecutor in the same office as the original decision maker will conduct a review. If the decision is upheld, only then can a request be made for an independent review conducted by the Appeals and Review Unit (ARU) from a different CPS office. We question the integrity of reviews being conducted by the peers of the original decision maker and propose that the Government require all VRRs to be conducted by independent organisations (for example a lawyer not employed by the CPS or the IOPC for police reviews), or at a minimum, staff in different areas/offices to the original decision maker.
c) Survivor representations: There is currently no duty on either the CPS or police to invite the survivor to make representations within VRR processes. Indeed, the CPS have stated that the VRR process is only there to allow survivors to request a review – no reason is required.
d) Timeframes: Under current VRR guidelines, survivors must request a CPS review within 10 working days of a decision letter stating that the case will not be charged. The police allow survivors applying for a police VRR 3 months from the date of decision. We submit that the CPS timeframe is too short to allow survivors time to understand the decision, seek advice from ISVAs or other supporters, make a decision on whether or not to submit a review, and action the request, particularly if ISVAs or Advocates have competing commitments in that 10-day timeframe. We propose that the CPS timeframes be extended to 3 months, to afford parity to all survivors, regardless of whether the police or CPS ended their case. A survivor does not choose whether the police or CPS make the decision, and they should not be disadvantaged if it is the CPS.
The Government’s proposals to amend the role of the Victims’ Commissioner
Whether the legislative steps proposed by the Government will lead to an improvement in the commissioning of support services?
To illustrate the need for this, in the year 2020-21, the Ministry of Justice and PCCs together provided more than 7 times the funding received from CCGs, NHS England, and SARCs combined to Rape Crisis Centres. This is despite the fact that the large majority of victim-survivors are wanting to access therapeutic services, and are unlikely to report to the police. There should therefore be a statutory duty on CCGs, which are becoming ICSs, Health and NHS commissioners, to appropriately resource specialist SVA counselling such as that provided by accredited Rape Crisis services. Health must have a duty to commission Rape Crisis services, without demanding they mirror statutory mental health services which are neither holistic nor specialist in supporting SVA victim-survivors.
Secondly, the National Statement of Expectations sets out how commissioners should fund specialist sexual violence services to meet their needs. Within the Bill there must be a duty on National Government, PCCs, and all local and regional commissioners to use the guidance consistently. By embedding these changing within the Bill, it will ensure the value of the specialism is understood widely and will protect specialist sexual violence and abuse services from being undercut by generic and non-specialist support.
Whether the steps outlined by the Government will lead to increased awareness and effectiveness of the ISVAs and IDVAs?
• More ISVAs, based in SVA services like Rape Crisis Centres to provide the support survivors need, and specifically, longer term contracts with a minimum of 5 years. Currently some clients must wait on waiting lists for support, meaning that they may be accessing the CJS without the support required. The Victim’s Funding Strategy recommends multi-year contracts, but without accompanying enforcement this can be ignored or overlooked by commissioners. We would also propose that commissioners should be asked to meet certain standards, as previously stated. One Rape Crisis member centre explains:
“Commissioners need to have some kind of track record or commissioning kite-mark to demonstrate they are able to commission services appropriately. They need to listen to services and understands the specialisms of the services that they are providing and how different communities are having their needs met”.
• We recommend that the Government enshrine the right of ISVAs to accompany their clients in court/the live link room, without any need to have this approved by the Judge in advance of trial. Survivors to have the right to ISVA support at court, should they wish to have it. We are aware of judges and other court staff being unfamiliar with the ISVA role in some areas of the country and therefore refusing to allow ISVAs to support their clients at court. This is despite Home Office guidance stating: “The court process can represent a particularly challenging stage for a victim/survivor, and one that they can expect their ISVA to support them through. As outlined in the Achieving Best Evidence (ABE) guidance, during this process the ISVA should support the victim/survivor by: accompanying the victim/survivor to the court; providing emotional support to the victim/survivor during the trial…; support the victim/survivor in court or in the live link room while they are giving their evidence…” However, the guidance also states that to access the live link room/court with the survivor, ISVAs have to go through a “formal approval process that should be made to the Judge in advance of the hearing.”
We question the necessity of such a process, which appears an arduous one to go through in advance of every SVA trial, if the benefit of ISVA support at trial is agreed upon. We recommend that the Government enshrine the right of ISVAs to accompany their clients in court/the live link room, without any need to have this approved by the Judge in advance of trial.
Whether there should be any further measures included in the Bill?
These matters are not currently addressed in the draft Bill, but we believe they are so important that we invite the committee to consider their inclusion.
Whilst ISVAs are an essential part of the wider network of support available to SVA victim-survivors, there is still a significant gap in the support available. We recommend that all survivors of sexual violence should have access to in-person free independent legal representation (ILR) – a proposal supported by the Victims’ Commissioner, Centre for Women’s Justice and others.
This should be a right enshrined in any Victims’ Bill. ILR is needed to ensure that sexual violence and abuse complainants’ Article 8 ECHR rights are being fully upheld and communicated, particularly with regard to recovery and disclosure processes. At present, we are concerned that policies governing recovery/disclosure of third party and digital material are not being followed in practice.
As previously stated in our consultation, key issues that could be drastically improved with ILR include:
Reasonable lines of enquiry: Prosecutors frequently insist the police follow lines of enquiry that police investigators do not consider reasonable, or else a charge will not be made/a case will be dropped. Often requests for information are speculative and unrelated to the facts of the case, as evidenced by the independent evaluation of a pilot of Sexual Violence Complainants’ Advocates (SVCAs) in Northumbria, which sought to support complainants around recovery and disclosure issues. 
Consent: despite there being a need for complainants to give informed consent for police to access their personal third party material, not all officers understand this. ‘We have never asked for anything like that [consent for 3rd party material] in the past… If we don’t get 3rd Party information the CPS won’t charge any cases.’ (Quote from a police officer interviewed about the SVCA pilot).
‘Undermining material’ and impact of third party and digital material on assessments of victim-survivor credibility: Our legal system is set up in a way that invites defendant attacks on victim-survivor credibility. This is clearly seen in recovery and disclosure processes, whereby material suggesting that complainant is not ‘saint-like’ is frequently used as a reason not to charge or progress a rape case, as it is unlikely to look good in front of a jury. This is exacerbated by the CPS move away from a merits-based approach to charging and instead towards a ‘bookmakers approach’.
This then creates a system that effectively victim-blames and decriminalises rape for a vast majority of survivors. ‘I wish they told me that signing a form to give the police access to my phone meant they would be examining my consensual sexual relationships and sexual history. I didn't realize my relationships with my ex's, how many friends I have, how often I go out, is relevant to being raped by a school teacher.’ (Quote from a survivor supported by an SVCA).
We do not believe that ISVAs should be asked to perform this role as they are not qualified lawyers, and serve their own unique function within the CJS. We refer the Justice Select Committee to the independent evaluation of the Northumbria pilot, which clearly states that ILR should not be provided by ISVAs. Indeed, the Home Office sets out in its own guidance: “ISVAs are not legal advisers therefore they should only provide impartial information regarding the criminal justice process and not attempt to provide legal advice. They should not advise the victim/survivor on the specific details of the case or what to say in a police interview or in the courtroom as this will amount to coaching the witness and will affect the outcome of the court process.”
In short, the evaluators stated that ILR should be provided by qualified and experienced lawyers, not ISVAs as:
• This would require a complete overhaul of the ISVA model, significant training and increased resources.
• ISVAs are already under-funded and in some areas unable to meet demand for the existing support they are able to offer.
• The role of ISVAs and ILR are fundamentally different and should not be combined.
• The jurisdictions who have already implemented models of ILR have come to the same conclusions, keeping the legal and non-legal advocacy roles separate.
• ISVAs will not be educated on procedural legal rules, nor be able to keep abreast of legal developments which will be necessary to the role in our legal system.
We therefore strongly recommend that the Government revise their plans to expand the role of ISVAs as set out in the ‘End-to-End Rape Review’ report, and instead guarantee, through the Victims’ Law, that all SVA survivors will have access to free ILR provided by qualified and experienced lawyers.
We call for the inclusion of a clause within the Bill that affords confidentiality to counselling and medical notes, with an automatic presumption of non-disclosure. The Bill is an opportunity to introduce safeguards against the inappropriate disclosure of therapy notes in RASSO investigations.
At present, victims and survivors are discouraged from seeking therapy and counselling to aid in their recovery following a rape or sexual assault because they are afraid that such records will be disclosed to the defense. Rape Crisis England and Wales, in collaboration with the specialist violence against women and girls sector, continue to advocate for victim and survivors of rape and sexual abuse to have access to specialist non-medicalised counselling and therapy as and when they need it, including pre-trial therapy. Requests for third party material and in particular for counselling notes overwhelmingly takes place in RASSO cases. Access to such personal information must be restricted on the grounds that confidentiality is inherent to the therapeutic process, as counselling deals with feelings rather than facts.
It is critical that the Committee considers the inclusion of restricted access to such records, for example in NSW Australia, The Sexual Assault Communications Privilege law significantly restricts the circumstances in which a disclosure made in the course of therapy or medical setting can enter into the criminal justice system. We believe the Victims’ Law should be drafted with such protections and safeguards in place that prioritise the mental health and wellbeing of victims and survivors of rape. The inclusion of this amendment within the Victims’ Law has been echoed by the Victims Commissioner and others within the women’s sector.
 Home Office (27 January 2022) Crime outcomes in England and Wales, year to September 2021
 Victims’ Commissioner. (2021). Victims Law Policy Paper: Victims’ Commissioner’s Proposals for a Victims Law, p18.
 Victorian Law Reform Commission. (2015). Victims of Crime in the Criminal Trial Process: Report, pgh 10.1.
 Further Information available at: https://lawrs.org.uk/wp-content/uploads/2022/02/Joint-Response-to-Home-Office-Review_-data-sharing.pdf
 10 CPS. (2020). Victims' Right to Review Data 2019-2020. Online: https://www.cps.gov.uk/underlyingdata/victims-right-review-data-2019-2020.
 RCEW, Imkaan, EVAW and Centre for Women’s Justice. (2020). The Decriminalisation of Rape: The justice system is failing survivors of rape and sexual abuse and needs to change, p28
 Rape Crisis England and Wales (2021) Holding it together: The Courage, resilience, and innovation of Rape Crisis Centres during the Covid-19 pandemic.
 Home Office. (2017). The Role of the Independent Sexual Violence Adviser: Essential Elements, pg 4.2
 Home Office. (2017). The Role of the Independent Sexual Violence Adviser: Essential Elements, pg. 42
 Home Office. (2017). The Role of the Independent Sexual Violence Adviser: Essential Elements, pg.34
 Victims’ Commissioner. (2021). Victims Law Policy Paper: Victims’ Commissioner’s Proposals for a Victims Law, p18.
 See: https://needisclear.wordpress.com/.
 Smith, O. and Daly, E. (2020). Final Report: Evaluation of the Sexual Violence Complainants’ Advocate Scheme, p22. Available online: https://needisclear.files.wordpress.com/2020/11/svca-evaluation-final-report1.pdf
 Ibid p.21
 RCEW, Imkaan, EVAW and Centre for Women’s Justice. (2020). The Decriminalisation of Rape: The justice system is failing survivors of rape and sexual abuse and needs to change, p37
 Smith, O. and Daly, E. (2020). Final Report: Evaluation of the Sexual Violence Complainants’ Advocate Scheme, p22. Available online: https://needisclear.files.wordpress.com/2020/11/svca-evaluation-final-report1.pdf. p.22
 Ibid note 45, p67.
 Home Office. (2017). The Role of the Independent Sexual Violence Adviser: Essential Elements, pg. 4.2.
 The Sexual Assault Communications Privilege law in New South Wales See: NSW Legislative Council debate from 1997: https://www.parliament.nsw.gov.au/Hansard/Pages/HansardFull.aspx#/DateDisplay/H ANSARD-1820781676-13549/HANSARD-1820781676-13510. Sections 295-306 of the Criminal Procedure Act 1986 http://www8.austlii.edu.au/cgibin/viewdb/au/legis/nsw/consol_act/cpa1986188/
 Including; the End Violence Against Women and Girls Coalition and Centre for Women’s Justice.