Supplementary written evidence submitted by Baljit Ubhey OBE, Director of Strategy and Policy, CPS HQ, Strategy and Policy Directorate (VIC0063)
Thank you for inviting the Crown Prosecution Service (CPS) to appear before the Justice Committee as part of your pre-legislative scrutiny of the draft Victims’ Bill. The CPS is committed to improving the experience of victims within the criminal justice system, and we welcomed the opportunity to provide our insights on the draft Bill and wider package of proposed measures.
I committed to follow up and write to you with detail of our guidance on community impact statements, and to set out some additional observations on the draft Bill that we did not have the opportunity to cover in the evidence session on the 28 June, given the limitations on time.
Community Impact Statements
I referred in the evidence session to the CPS guidance on community impact statements and our specific guidelines on their use in hate crime cases. The CPS guidance recognises the role of community impact statements in helping criminal justice agencies to understand the wider impact of offending and sets out how they can be useful for the CPS specifically.
From a CPS perspective, a community impact statement should not be used as part of the evidential test when deciding whether to charge a suspect, but it can inform the public interest stage of the full code test set out in Code for Crown Prosecutors. Their use could also have the potential to result in more compensation and ancillary orders.
Our guidelines on ‘Community Impact Statements and their use in Hate Crime cases’ highlight that the use of community impact statements allows for both the prevalence and impact of these crimes to be fully understood and taken into account in appropriate hate crime cases.
As I mentioned during the evidence session, there are parameters around the use of community impact statements in relation to sentencing, and the current case law governing this sets out clear criteria as to when a judge may take into account the prevalence of an offence. The CPS guidance can be accessed using the links below:
https://www.cps.gov.uk/legal-guidance/community-impact-statements
https://www.cps.gov.uk/legal-guidance/community-impact-statements-and-their-use-hate-crimecases
Additional observations on the draft Victims’ Bill
We welcome the focus of the draft Victims’ Bill on improving victims’ experiences of the criminal justice system, this is certainly a matter we take seriously in the CPS. We would however like to draw the Committee’s attention to two specific areas where there may be an opportunity for the Ministry of Justice to consider whether there is scope to explore going further.
Although this matter does not fall directly within the scope of the draft Victims’ Bill as currently drafted, it is important that we look at the experience of victims broadly and consider whether there are areas that could be examined.
The right to appeal a decision is absolutely crucial, and this right should balance fairness to defendants with fairness to victims and witnesses. The CPS maintains that the right of appeal should remain, however the current framework which allows automatic rights of appeal if convicted in the Magistrates or Youth Court is an area that we would urge further consideration of, particularly in relation to the impact on victims.
The Committee may be aware that if a defendant is convicted in the Magistrates’ Court or Youth Court, an appeal to the Crown Court is automatically available. The defendant does not need to prove the merit of an appeal, nor do they need to demonstrate why their conviction was unsafe or satisfy any other test for their case to be reheard in full at the Crown Court.
The Crown Court then proceeds to hear the evidence afresh. This means that victims and witnesses must give their evidence for a second time, in the Crown Court – an experience which is often traumatic. We think there may be an opportunity to consider whether this is fair to victims and witnesses who are asked to go through the trial process again in cases where no reasonable explanation can be given to them for the request. It is also worth noting that in cases heard in the Youth Court, the victims and witnesses are often children, and can include very serious offences such as rape. It is not unusual for these appeals to be abandoned on the day of the court hearing, or for the witnesses not to attend the new hearing and for the appeal to be successful.
This system is at odds with appeals to the Court of Appeal Criminal Division from the Crown Court, where there is an assessment of whether a conviction was unsafe before a retrial can be ordered.
I want to reiterate that the CPS does not in any way propose the removal of the right to appeal, and we would entirely expect that anyone with reasonable grounds would be granted an appeal. However, we do consider this is an area where there as an opportunity to reflect on this current system, and whether it balances fairness to victim and witnesses appropriately.
We would of course be happy to work with the MoJ on this issue and acknowledge this would require discussion across the criminal justice system.
We note that the draft Victims’ Bill does not specifically address the issue of compensation for victims, although there is an entitlement under the current Victims’ Code for victims ‘to be provided with information about compensation’.
The CPS’s Economic Crime Strategy commits to compensating victims where possible, and we also seek to recover the proceeds of crime which can assist in enabling victims to be compensated. The CPS has engaged with the Law Commission, on the interaction between confiscation and compensation in the Proceeds of Crime Act, as part of their ongoing review of confiscation law.
Our immediate operational concern is that whilst the ability to increase confiscation amounts exists, there is no equivalent for compensation orders in the same case. This means that any additional funds confiscated cannot then be used to further compensate victims in that case. This is an issue that the Director of Public Prosecutions raised, when he appeared before the House of Lords Fraud Act Committee last month, and it was also raised by our Director of Legal Services when he appeared before this committee’s Fraud Inquiry in March.
The CPS would support legislation to address this issue. This interaction of confiscation and compensation points to wider weaknesses in compensation law that we suggest need to be considered as a discrete issue, although perhaps using confiscation law as a tried and tested model.
Again, this is a matter we are happy to provide our operational perspective and insights on in order to support the government in making improvements for victims.
Baljit Ubhey
Director of Strategy and Policy
July 2022