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Friday, July 11, 2014

Victim's Code - Is it enough, or is it toothless?

The announcement this week that the Victim’s CommissionerBaroness Newlove will be conducting reviews to find out if the Criminal JusticeSystem is adhering to the Victims Code is to be welcomed!  Let’s face it, anything that improves an individual’s experience of navigating the daunting criminal justice system after having a crime inflicted on them is to be applauded. 
The Code of Practice for Victims of Crime, otherwise known as the ‘Victim’s Code’ was first introduced in 2006 with a purpose of setting out the services which were to be provided to victims of crimes by criminal justice agencies in England and Wales.  The ‘Code’ was reformed in 2013 and includes entitlements, such as, allowing the victim to read a statement out loud in court, or to have someone else read it for them.  To read a list of ‘entitlements’ in the Victims Code click HERE  

The confusion arises when you find out that the ‘Victims Personal Statement Scheme’ has been in place since 2001; not exactly a new entitlement. And even though being able to read your statement out in court is cited as an entitlement, the court judge can still refuse to allow it. So what are the new ‘entitlements’ in the ‘Victim’s Code’?  There isn’t any. Most entitlements are already being given to victims of crime or should be given.  This gives rise to the question of whether this is just a way of the government acting like it is doing something to help victims, when really it does nothing that isn’t already being done.

There is also the question of whether the ‘Victims Code’ is enough, and what are the consequences for criminal justice agencies for not following it?  Well to try and put it simply; although the ‘Code’ comes under the Domestic Violence, Crime and Victims Act 2004, if a victim of crime has not received the relevant service, they would have to complain to the relevant service provider and if that doesn’t achieve anything the victim can then take their complaint to the Parliamentary Ombudsman via their MP. 
So the upshot is there are no real consequences for criminal justice agencies for not following it, and half the time when there are complaints of criminal justice agencies not adhering to the ‘Code’ most agencies point the blame at each other.  Meanwhile, victims suffer whilst agencies play the blame game!

The wider question to be asked is: is the reform of the ‘Victims Code’ going far enough to ensure that victims are put first, and that the system is more responsive and easier to navigate?  Well, it is quite telling that the former head of public prosecutions Kier Starmer, who is now a member of the Labour founded Victim’s Taskforce, has been quoted as saying that:

“From a victim’s point of view, our justice system is hardly fit for purpose”

         (TheGuardian, 2014)
He goes on to say that:

“No doubt individual failings by police and prosecutors provide part of the explanation.  But to suggest these shortcomings are the core problem is complacent, and overlooks the real improvements that have taken place in recent years.  A more radical review of our criminal justice arrangements is long overdue”

                                                                                                                                             (TheGuardian, 2014)

“These measures (Victims Code) are ‘bolt-ons’ to the existing arrangements.  What is needed is a fundamental rethink, leading to a specific and legally enforceable Victim’s Law alongside a real and radical shift in attitude and approach”

Although Starmer does not specifically detail what he means by a ‘Victim’s law’ I agree with elements of his views, such as, that there needs to be a radical shift in attitude and approach.  Why he didn’t do anything about it whilst in his previous role is beyond me!  But maybe a move away from an adversarial system to an inquisitorial system could be the answer?  Who knows, but it is worth investigating. 

One thing about the ‘Code’ which baffles me and highlights the need for radical reform is the point at which it states that “victims of crime should be treated in a respectful, sensitive and professional manner without discrimination of any kind. They should receive appropriate support to help them, as far as possible, to cope and recover and be protected from re-victimisation”. 

This point baffles me due to the fact that it does not seem to apply to defence barristers who are sometimes responsible for re-victimising victims of serious sexual offences amongst other crimes.  There are many women who speak of being ‘raped all over again ‘and traumatised by defence barristers’ up and down the country.  It seems that the ‘Code’ will look after you until you cross the threshold into the courtroom and your time comes to stand in front of a defence barrister, when you are made to go through every minute detail of the crime in front of total strangers and have your character, integrity and life ripped to shreds and dragged through the mud.  Legal professionals, such as defence barristers, have been the culprits a lot of the time; they have been the authors of a lot of problems over the years with the way that victims have been treated. 
So why then are defence barristers allowed to behave like this? Something needs to change! 

Additionally, why do rape victims feel like they are on trial and have limited (5 minutes before going into the courtroom) time with the CPS prosecutor?  Actually come to think of it, why do rape victims not have anybody fighting their corner in the courtroom? The CPS prosecutor works for the crown and the defence barrister works for the defendant (the defendant is able to have unlimited time with his barrister/solicitor).  This is surely not fair!

Here are a few cases where the treatment of rape victims by defence barristers could have been better.

 After highlighting the issues with defence barristers, it is interesting to highlight the fact that there has been much emphasis on how the police respond to rape victims, and how this could potentially have an impact on the low reporting rates for rape.  When in actual fact it is more likely to be that individuals who have been raped know what they have to go through in a courtroom which could actually be what is putting rape victims off reporting these crimes. 
In the academic field of Criminology the idea of improving victim’s experiences and ‘rebalancing’ the Criminal Justice System to recognise the needs of the victim is not a new concept.  It has been around since the 1940’s and comes in the form of what is called ‘Victimology’. 
Academics argue that the increasing concern with rebalancing victims ‘rights’ can be dangerous as it tends to suggest that defendants have more rights than victims, and that to improve victim’s rights would have to make rights for defendants worse.  And it goes on to state that changing the system to allow victims more rights could change the fundamental principles of criminal justice; if that happens they say victims would gain nothing.
Academics argue that criminal justice should not be thought of as a balancing act between defendant and victim.  The focus should be on the general principles that underpin the system of criminal justice.  Put simply, the rights of victims should be abandoned and replaced with a concept that focuses on the right for everybody to be treated in a fair manner.
It is fair to say that victim’s right have come a long way from the 1940’s.  However there is still a fair way to go, and no doubt this debate will continue to rage on until the government take proper action to improve the rights of victims, specifically victims of serious sexual abuse.

J. Taylor

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