Victims' rights

Domestic Violence, Crime and Victims Bill

The Domestic Violence, Crime and Victims Bill was introduced in Parliament in December 2003. Victim Support responded with a briefing (below) in advance of the Grand Committee debate in the House of Lords.

Summary

Victims and witnesses

The Bill

Domestic violence

The Bill


Domestic Violence, Crime and Victims Bill - briefing by Victim Support for House of Lords Grand Committee (14 January 2019)


Introduction

Victim Support is the national charity working to help victims and witnesses of crime. We are an independent organisation, offering a free and confidential service, irrespective of whether or not a crime has been reported. Each year, trained volunteers and staff based in a network of community groups offer emotional support, practical help and information to nearly one and a half million victims of crimes ranging from burglary to the murder of a relative. Victim Support also runs the Witness Service in the criminal courts in England and Wales. During 2002/3 over 330,000 people, including 29,000 young witnesses, were supported by the Witness Service in the criminal courts. Victim Support runs a telephone Supportline for victims of crime offering information and referral to local services. During 2002/3, Victim Support's referrals in relation to domestic violence were as follows:

Services in the community 74,106 (5.3% of all referrals)
Witness Service 8,638 (2.6% of all referrals)
Supportline 2,014 calls (10.6% of all calls)
Total 84,758 referrals  

Victim Support also works to increase awareness of the effects of crime and to achieve greater recognition of victims' and witnesses' rights.

This briefing is to provide Victim Support's response to the Domestic Violence, Crime and Victims Bill and relevant amendments as they stood at midday on 14 January 2019. We are aware that there will be further amendments and developments as the Bill is discussed in Grand Committee.

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Part 1 - Domestic violence

1. Summary of Victim Support's view

It is our belief that the safety of victims of domestic violence is of paramount importance. Safety planning needs to be the first consideration of any agency that comes into contact with the victim, or takes actions or makes decisions which affect them.

Amongst the many reasons given for victims not leaving an abusive partner, their recognition or fear that they and their children will be in more danger if they leave is seldom acknowledged. Many perpetrators make threats if a victim suggests leaving and some carry out these threats. Evidence shows that women are most at risk in pregnancy and when leaving a violent partner. It is often at this stage that violence escalates and can result in murder. It is because of this that safety planning is so important and that measures need to be put in place that can protect the victim whether she decides to stay or leave.

The current distinction between civil and criminal cases is very confusing for victims and can leave them in danger. We welcome the fact that this legislation should result in a more joined up response by the criminal and civil system so that victims of domestic violence will have more protection both during the court process and afterwards.

It is against natural justice to compel a witness to give evidence in court if that victim is thereby endangered, without offering protection and support. Support structures include rights to protection before, during and after the trial. The government therefore needs to look both at legislative measures such as the ones proposed here but equally as important, the government needs to look at the wider service provision for victims.

We know that children growing up with domestic violence are more likely to experience child abuse themselves1 as well as the negative impact that witnessing domestic violence can have. Where there is a perpetrator of domestic violence in the family, we would like to see systems that look at the best interests of the child together with the adult victim of that domestic violence in terms of support and safety.

If the measures regarding breach of non-molestation orders and issuing of restraining orders come into force as the government is proposing, the family court will need to be constantly updated on the outcome of such proceedings in order to make fully-informed decisions regarding child contact.

2. Specific clauses

Clause 1 - Breach of non-molestation order to be a criminal offence

We support this clause.

A breach of a non-molestation order is likely to involve some form of violence that can be classed as a criminal offence. There are problems with enforcement of non-molestation and occupation orders. If no power of arrest is attached to an order, there is a difficult and dangerous period of time for the victim as they have to apply to the civil court for an arrest warrant. This takes time and effort (and money if the victim is not eligible for legal aid) and the victim is left at risk.

Clauses 2 and 3 - "Cohabitants" in Part 4 of the 1996 Act to include same sex couples, extension of Part 4 to non-cohabiting couples

We support these clauses.

Amendments suggested by Victim Support

Victim Support has suggested two amendments providing additional clauses concerning domestic violence. These are to extend to victims of domestic violence the eligibility for special measures and for anonymity currently afforded to victims of sexual offences.

Clauses 4 and 5 - Causing or allowing the death of a child or vulnerable adult

Victim Support is unable to comment on the detail of these clauses as they relate to defendants. However, we would want to raise the concern if one of the pair charged jointly has experienced abuse from the other. This could have made them unable to prevent the other from harming the child or could prevent them from speaking out as to what actually happened. We therefore welcome Baroness Anelay's amendment requiring the court to consider the extent to which domestic violence or fear of domestic violence may have affected a person's involvement in the death of a child or vulnerable adult in their household.

Clause 6 - Establishment and conduct of domestic homicide reviews

We support this clause.

We believe that multi-agency reviews following domestic violence homicides will bring benefits, provided that recommendations are implemented and lessons are learned so that the same mistakes are not repeated. We also support Baroness Anelay's amendment creating a statutory requirement for guidance for establishment and conduct of the reviews.

However, we do have concerns with Baroness Anelay's amendment to delay such a review until after a criminal trial has ended, as this would create a long delay from the point of view of the family of the victim. Homicide trials generally occur a year or two after a homicide. Awaiting and then being involved with the review could prolong the distress of the family. We are aware that the review must not conflict with the investigation or the trial but we would also be concerned that if the review shows up lessons, those lessons need to be learnt immediately, not a couple of years later.

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Part 2 - Criminal procedure

Clause 7 - Common assault to be an arrestable offence

We support this clause.

This clause will apply to all offences of common assault, not just those where domestic violence is present, and we consider that this will ensure greater protection for the victim by giving the police the power to remove the offender from the scene. The situation often arises where a victim of domestic violence is assaulted even where there is a non-molestation order in existence. The police are not certain about their powers of arrest as not all orders have a power of arrest attached to them. If common assault is confirmed as an arrestable offence, there will be no doubt about the action that the police can take to protect the victim.

Clause 8 - Restraining orders

We support this clause.

Victims can come away from a criminal court with less protection than before the trial as any bail conditions imposed on the defendant will have finished. Under the proposed legislation, cases which currently necessitate a victim making a separate application to the civil court for an injunction at a later date, will be capable of being dealt with by the criminal court during the criminal justice process. This means the court will have the discretion to provide additional protection for the victim where it considers this necessary.

We therefore support the idea of making restraining orders available to criminal courts where a person has been convicted or where there is insufficient evidence to convict but the court considers that it is necessary to make a restraining order to protect the victim. This would reduce the need for the victim to apply for an injunction following the trial.

The current distinction between civil and criminal cases is very confusing for victims and can leave them in danger. We believe it is for the courts to adapt to the needs of victims even if this means coping with the differences between civil and criminal cases in one court, rather than for the victim to have the trauma and inconvenience of providing the same information to two different courts at two different times whilst remaining unprotected by either court between these times.

Whilst the mention of a balance of probabilities in Lady Anelay's proposed amendment to clause 8 appears helpful, we have concerns about the part of this amendment which suggests that the restraining orders should be confined to protecting a person from harassment by the defendant. We believe that the effects of restraining orders being given immediately subsequent to a criminal trial, needs to be the same as the effect of a civil non-molestation order. These can refer to a range of activities which do not have to constitute harassment. For example, a non-molestation order could prevent someone coming within 100 yards of the victim. This would only have to happen once for the order to have been breached. Under section 4 of the Protection of Harassment Act 1997, there have to be two or more incidences, before the law comes into effect.

We also have concerns about the addition to insert the right for a court to exercise its power to make a similar restraining order against any person who is before the court, as this could put the complainant into the position of suddenly being accused of misconduct.

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Part 3 - Victims etc

1. Summary of Victim Support's view

We welcome the government's intention to create both a statutory code to put rights for victims of crime on a statutory footing and a Commissioner for victims and witnesses. Victim Support has been calling for these proposals for some time.

Currently victims' legal rights are extremely limited. Victims are not a party to the case and we believe that making them a party would not increase their rights. Research in Europe found that England and Wales (along with the Netherlands) offer the best practice in relation to information, compensation, protection and treatment of victims2. This is without their having the right to be a civil party in the case which victims in many European countries have.

Currently victims can complain to a criminal justice agency which fails to deliver according to the standard in the Victim's charter or the law. However, there is no form of remedy or redress if their complaint is upheld.

Having rights that cannot be enforced would give victims' false expectations. We therefore welcome the proposal for recourse to an Ombudsman.

Having said this, Victim Support believes that agencies should observe victims' rights in the first place so that victims are not put in the position of having to complain. We believe that government resources and pressure are needed for this. This is evidenced by the fact that many Victim's charter standards have not been routinely implemented despite being in existence since 1996 or earlier.

In particular, we believe there will be a need for:

In addition, for the Commissioner to be effective, Victim Support believes that this post should have the power to require government departments to have pro-victim and witness policies and procedures.

Given the wide-ranging effects of crime and the needs of all victims irrespective of whether an offender has been brought to justice, we support the Commissioner's remit to cover a wide range of government departments (including those responsible for health and housing, for example) and that there is the potential in the legislation for the Code to be expanded over time to reflect this.

Amendments suggested by Victim Support

Victim Support has suggested three amendments in relation to this part of the Bill. Two are to improve the functioning of the victims' Code and one is to enhance the Ombudsman's accountability. These are covered in more detail at the relevant clauses below.

2. Victim Support's response to specific clauses

Clauses 13 -15 - Code of practice for victims

We support these clauses.

We welcome the proposal to create a statutory code to put rights for victims of crime onto a statutory footing.

Amendments suggested by Victim Support

We are aware that the rights of victims of crime are not listed on the face of the Bill. We have therefore suggested an amendment regarding the victims' Code. This is to ensure that there is a definition of services which victims have a right to and that the Code is never changed to their detriment. As a Statutory Instrument there is the flexibility for the Code to be changed without parliamentary time being required. It is to ensure this flexibility is only used to enhance services to victims of crime, never to reduce their rights, that we have suggested this amendment.

We would welcome further debate on the amendment proposed by Baroness Anelay to restrict the agencies covered by the victims' Code to criminal justice agencies. We understand that this is for the purposes of clarity and would like to provide some further background information here.

The victims' Code was published in Parliament at the time the Bill was published and it includes Victim Support as one of the agencies with responsibilities towards victims of crime. We have been considering this matter for many months and came to the conclusion that we do want to be included. This is because we believe that victims of crime should have a statutory right to our services. We have ensured that this is not counter to our charitable status. However Victim Support is clearly not a criminal justice agency.

In addition, as currently drafted the legislation allows for the Code to be expanded over time to add obligations for agencies and departments outside the criminal justice system. We are concerned that this proposed amendment would take away this meaning in the Bill.

However, the government's strategy states as one of its aims:

"to reduce the adverse effects of crime on victims and witnesses, and prevent secondary vicitmisation by: ... ensuring that all victims of crime and people in fear of crime benefit from more responsive local services - particularly in health, social services and housing ..." National strategy to deliver improved services (Home Office, July 2003, page 10, para 3.1 (i) second bullet).

Finally, the proposed amendment would not seem to be consistent with the clauses relating to the Commissioner. Clause 22 (2) (a) refers to the Commissioner's remit as including an authority appearing to the Secretary of State to exercise functions of a public nature.

Clause 16 - Investigations by Parliamentary Commissioner

We support this clause as an interim measure only.

Victim Support believes that there should be a dedicated 'Victims' Ombudsman' specifically responsible for victims of crime within the new Ombudsman college suggested by the Collcutt review. This would remove the need for the MP filter which is part of the current system.

Victim Support believes that the Ombudsman should take account of the victims' views before deciding what form of remedy or redress to offer. In Victim Support's experience, victims have different requests. They may want the agency to acknowledge that something has gone wrong, to provide them with an explanation, an apology and an assurance that steps have been taken to ensure that the same mistake will not happen again. Some victims of crime also need money.

The results of complaints to the Ombudsman need to be monitored in terms of victim satisfaction.

Clause 17-22 - Commissioner for Victims and Witnesses

We support these clauses.

We welcome the intention to create a post of Commissioner for victims and witnesses of crime. We welcome the fact that the legislation states that the Commissioner's remit includes victims even if they have not reported the crime and witnesses even if they have not come forward to make statements.

We are concerned that the Commissioner's role has very limited powers and believe that these need to be enhanced In order for the Commissioner to be as effective as possible. For example, their role could have greater benefits if they were able to give directions to an authority within their remit, rather than simply make recommendations, as stated at clause 18 (2) (c). As well as engaging with policies and procedures that already exist, we believe the Commissioner should also have the power to require departments to develop policies/procedures where none has previously existed.

Clause 23 - Disclosure of information

Amendment suggested by Victim Support

We have suggested an amendment to make sure that all victims of crime obtain the services for which they are eligible under the victims' Code. Our amendment is to ensure clarity in relation to disclosure of information, and in particular data protection.

Clause 24 - Victims' Advisory Panel

Victim Support is a member of the Victims' Advisory Panel and expects to continue to participate in this.

We support the amendment proposed by Baroness Anelay stating that the Secretary of State must reimburse Panel members for travelling and other expenses.

Clause 25 - Grants for assisting victims, witnesses, etc

We support this clause as we understand that it provides parliamentary authority for the grant giving by the Home Office which already takes place (and of which Victim Support is a major recipient). We support the amendment put by Baroness Anelay which makes it clear that charities or other organizations can receive grants for assisting victims or witnesses.

Victim Support
14 January 2019


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