The current Code of Practice for Victims of Crime, to give it its proper title, was introduced in 2006. It statutory origin can be found in ss 32 to 34 of the Domestic Violence Crime and Victims Act 2004. The code obliges certain organisations, such as the police, CPS and courts, to provide services for victims. Failure to deliver the specified level of service “does not of itself make [them] liable to criminal or civil proceedings” though “a court may take into account a failure to comply with the code in determining a question in the proceedings”.
The new look 2013 draft
The 2013 draft is designed to make it clear to the victim what they can expect; this is a welcome change to the 2006 version which reads more like a checklist for service providers. The draft describes “entitlements” step by step along the “victim’s journey” with a stated aim 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”.
The 2013 draft is divided into chapter 1 for adult victims and “priority category” adult victims and chapter 2 for victims under 18. Priority category adults and children have “enhanced entitlements”. Within chapters 1 and 2, there are separate parts describing the “duties on agencies” which make the draft longer and less clear than it ought to be.
Adult victims and the “priority category”
Like the 2006 version, the 2013 draft states that all victims are entitled to information about the criminal justice system, updates on police and prosecution progress, notification if the charge is substantially altered or proceedings are discontinued and a witness familiarisation visit if they are due to give evidence.
In the 2013 draft “victims of the most serious crime, persistently targeted, or vulnerable or intimidated” adult victims are now bundled together in the “priority category”. This is to the detriment of the vulnerable and intimidated victim since the draft makes only superficial mention of their entitlements to special measures; something which victims could not be expected to know about. Priority category adults are entitled to be informed about the outcome of a special measures application but there is no entitlement to be informed about the outcome of a ground rules hearing (if there is one) when the timing of the evidence, breaks, use of communication aids etc may be discussed.
As with child victims, police should automatically refer those in the priority category to “victims’ services” within two working days. Those in the priority category, like child victims, are entitled to specified updates within one working day as opposed to five working days for other victims. In addition, they are entitled to a discussion about reasons for alteration of a charge or discontinuance.
Children’s entitlements are set out in a chapter of their own. It is in this chapter that the 2013 draft includes some particularly confused wording. The child victim giving a statement to the police is told of an entitlement to “have your statement video recorded so that you do not have to tell the police what happened to you more often than necessary”. Statement video recording is not for this purpose. Practitioners will be aware of frequent instances of overly lengthy, poorly planned and even repeated attempts at video-recorded ABE interviews with children. What the video recording may do (if deemed admissible) is relieve the child of having to give live evidence in chief but this is not made clear. This wording needs changing. Also misleading is:
“When you give evidence at the trial you may do this by live link or in a pre-recorded video. But if you do go to court to give evidence you are entitled to:
Wherever possible meet the prosecutor or CPS representative…”
This implies that the use of live link or pre-recording will obviate the needs for the child to go to court to give evidence. It’s muddled thinking. Most children still have to attend court to give evidence by live link at court; remote live links are infrequently used. In addition, save for examination in chief, giving evidence in a “pre-recorded video” is not possible until ministers bring into force s 28 of the Youth Justice and Criminal Evidence Act 1999, “video recorded cross-examination or re-examination”. This section of the draft, unless amended, will create dangerously false expectations.
Meetings with the CPS or their representative
In the 2013 draft, if the child victim gives evidence at court, they are entitled to a meeting “wherever possible” with the prosecutor or CPS representative. The adult victim is similarly entitled to meet the prosecutor or CPS representative “where circumstances permit”. It is poor that such an important step in the victim’s experience has such a weak commitment; it’s hardly fitting to call it an “entitlement”.
At the very least the code should entitle the victim who is at court for the trial to a meeting with the prosecutor or CPS representative if the CPS is considering discontinuance. An entitlement to a meeting in those circumstances would help to reduce the risk of an ill-informed decision or a victim feeling he was being treated “as a second class citizen” as occurred, for example, in B v DPP & Anor  EWHC 106.
In the round
Most of the 2013 draft has been laid out with the victim or their family in mind; this is to be welcomed. It contains step by step advice and new inclusions such as the Victim Personal Statement Scheme, the entitlement to pre-trial therapy and a chapter on children, though sections directed at agencies contain unnecessary duplication. It has been said that there is currently poor awareness of the 2006 Victims’ Code; the 2013 draft is almost twice as long which is hardly going to help in this regard.
Under the sections about trials, there are repeated references to special measures where “agreed” being set up by HMCTS “where possible”. When the court orders them (it does not agree them) one would hope that the victim is entitled to expect them but the 2013 draft does not say that. It is another weakness. The 2013 draft also misses the opportunity to detail special measures for adult victims. For instance, the Registered Intermediary is mentioned just once in all 60 pages and then only in the chapter on children.
Another disappointment is the waiting time commitment. HMCTs will ensure “wherever possible” that victims giving evidence do not have to wait more than two hours. Research illustrates the negative impact on vulnerable adults and children who are kept waiting to give evidence and the draft should reduce the target for them.
In both the existing Victim’s Code and in the 2013 draft, a victim complaining about a breach of the code may contact a Member of Parliament to seek a referral to the Parliamentary Ombudsman. Victim Support has called for removal of this MP “filter” and a single point of contact for victims’ complaints. If there has been a breach, especially at trial, the damage may be irreversible which only goes to underline the importance of advocates ensuring in advance their familiarity with not only the code but also best practice in respect of children and other vulnerable victims. Guidance can be accessed for free at the website of The Advocate’s Gateway. See theadvocatesgateway.org.
The Improving the Code of Practice for Victims of Crime consultation closes on 10 May.
Penny Cooper is a Professor of law at Kingston University and Chair of the Vulnerable Witness Committee of The Advocacy Training Council.