New rights for victims of crime in Europe - What the UK and Ireland still have to learn
Although in many ways the UK and Ireland lead the way in terms of provision for victims and witnesses, there are still gaps.
Largely these gaps exist because of the particular way in which our legal systems have developed and been applied. Mark Groenhuijsen (then chair of criminal law at Tilburg University), speaking at a Victim Support conference in England in 1999 stated: "Though in many matters the UK is ahead of other jurisdictions, there were some areas in which there were models of criminal justice that were more favourable to victims". In particular, he was concerned about the harshness of the UK's system of cross-examination when, he felt, other countries with an inquisitional rather than an adversarial judicial system took a less intimidatory approach.
In addition, some of the entitlements in the Framework Decision although available in the UK and Ireland, are very limited. An example is the payment of expenses to witnesses attending court. Victim Support believes that witnesses should be reimbursed on the day, before they leave Court, making the system more responsive to the people on whom the court relies.
'Civil party' rights
In the UK and Ireland victims of crime traditionally have a passive role in the criminal justice process. Unlike some European models of justice they do not become a 'civil party' in the proceedings or acquire the right to act as an auxiliary prosecutor with access to separate legal representation.
Principally, becoming a party to the proceedings relates to the victims' right to seek compensation from the offender. Responsibility for seeking compensation rests with the prosecutor in the UK and Ireland, and there appears to be little evidence that victims in other countries achieve much benefit from having to pursue their own claims.
However, three articles in the Framework Decision relate to the rights of witnesses and to 'parties' in the proceedings. These articles refer to rights to communication safeguards, to access to free advice, and to expenses. In the UK and Ireland witnesses are entitled to these provisions, but not victims, or bereaved family members who are not required as witnesses.
Article 5: communication safeguards
Each Member State shall, in respect of victims having the status of witnesses or parties to the proceedings, take the necessary measures to minimise as far as possible communication difficulties as regards their understanding or, involvement in, the relevant steps of the criminal proceedings in question.
In the UK and Ireland bereaved families or victims who are not witnesses (including cases in which there is a guilty plea) are not currently entitled to an interpreter. In most EU countries they would be 'parties' and therefore will be entitled to communication safeguards even if not giving evidence.
Article 6: specific assistance to victim
Each Member State shall ensure that victims have access to advice as referred to in Article 4 (1)(f)(iii), provided free of charge where warranted, concerning their role in the proceedings and, where appropriate, legal aid.
In the UK and Ireland legal aid is only available in limited circumstances. Moreover, it is means-tested and there has to be a relatively high prospect of success before a case will be funded. Legal assistance is not available to help with applications for criminal injuries compensation (state compensation), including the appeal stage.
Article 7: victims' expenses with respect to criminal proceedings
Each Member State shall, according to the applicable national provisions, afford victims who have the status of parties or witnesses the possibility of reimbursement of expenses incurred as a result of their legitimate participation in criminal proceedings.
Again, the problem arises where victims / bereaved families are not 'parties' to the case and are not required as witnesses. As such they are not entitled to expenses to attend hearings. Obviously, where people are travelling from abroad and need somewhere to stay such costs can be insurmountable.
The Framework Decision specifically states that it does not impose an obligation on Member States to ensure that victims will be treated in a manner equivalent to that of a 'party' to proceedings. While Victim Support is not calling for victims to become 'parties' in proceedings, we want governments in the UK and Ireland to recognise victims' legitimate interests in these areas and to introduce measures to provide assistance. Natural justice demands that victims, including bereaved families, must have rights to enable them to attend, and to understand, the criminal proceedings affecting them.
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