Improving access to justice for vulnerable and intimidated victims: Analysing the impact of the EU victims directive.
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PowerPoint slides used in support of my conference paper delivered at the SLSA annual conference held in Aberdeen in April 2014.
Improving access to justice for vulnerable and intimidated victims: Analysing the impact of the EU victims directive.
- 1. Improving Access to Justice for Vulnerable and Intimidated Victims: Analysing the Impact of the EU Victims Directive. Louise Taylor, Nottingham Trent University Louise.Taylor@ntu.ac.uk 10th April 2014
- 2. The status of crime victims in English domestic law. Bipartisan adversarial system of justice. No special party status beyond that of witness. No legally enforceable victims rights, only service standards.
- 3. The Code of Practice for Victims of Crime (2013) service standards. Service standards put on a statutory basis for the first time under the Domestic Violence, Crime and Victims Act 2004. Overview.
- 4. The Code of Practice for Victims of Crime (2013) complaints procedure. S 34(1) - a breach of the Code does not give rise to criminal or civil liability. Overview of the Codes complaint mechanism. Effect of s 34 + complex complaints procedure means ineffective access to civil justice for crime victims who have received inadequate services under the Code.
- 5. EU Directive establishing minimum standards on the rights, support and protection of victims of crime (29/2012/EU). Adopted in October 2012. UK has until November 2015 to transpose the Directive into domestic law. Provisions will have direct effect, meaning that victims will be able to rely on rights enshrined in the Directive before domestic courts. Directive is also subject to full jurisdiction of CJEU.
- 6. Article 22: Identification of victims with specific protection needs. Directive: Member States shall ensure that victims receive a timely and individual assessmentto identify specific protection needs and to determine whether and to what extent they would benefit from special measures in the course of criminal proceedingsdue to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation. English provision: Revised Code places an obligation on police to conduct an early needs assessment. Ss 16 and 17 Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) identification of vulnerable and intimidated witnesses. Revised Code allows for enhanced services for certain victims. Identification deficit.
- 7. Article 23: Special measures of protection. Directive: Measures to be available during criminal investigations: Interviews to be carried out in specially designed or adapted premises. Interviews to be carried out by or through trained professionals. Interviews to be conducted by the same person. For cases involving sexual violence, gender based violence, or violence in a close relationship, interviews to be conducted by someone of the same sex as the victim. English provision: Achieving Best Evidence in Criminal Proceedings. ACPO National Investigative Interviewing Strategy 2009. The revised Code.
- 8. Article 23: Special measures of protection. Directive: Measures to be available during court proceedings: measures to avoid visual contact between victims and offenders; measures to ensure that the victim may be heard in the courtroom without being present; measures to avoid unnecessary questioning concerning the victims private life not related to the criminal offence; and, measures allowing a hearing to take place without the presence of the public. English provision: Special measures available under YJCEA 1999. S28 YJCEA 1999 pilot of video- recorded cross-examination evidence.
- 9. Article 24: Special measures of protection for children. Directive: All interviews conducted with child victims during the criminal investigation may be audio- visually recorded and such recordings may be available as evidence in criminal proceedings. Provision of special representative. Provision of legal representative. English provision: Achieving Best Evidence in Criminal Proceedings. Childrens advocates.
- 10. Where English provision may fall short: Overall the English provision looks well-placed in meeting the standards required by Articles 22-24, but Exploitation of Directives discretionary language. Government targeting of resources towards specific victim groups. Local commissioning of victims services by Police and Crime Commissioners.
- 11. The cycle of improved access to justice:
Editor's Notes
- #2: My aim today is to give you a brief overview of the provisions of the EU Directive as they relate to victims with specific protection needs. But also to demonstrate that the EU Dir improves access to justice for such victims, not only by making the criminal proceeding more accessible and less traumatic, but also by providing an avenue in which to access civil justice when standards of service for such victims have not been adequately met by the state.
- #4: Discuss previous 2006 Code, and significant revisions in the 2013 version. Explain that I wont be going into a great deal of detail about the Code at this stage because I will be doing so in the context of the Directive Articles relevant to vulnerable and intimidated victims. But a general overview of the types of issues covered by the revised Code will be explained here. As will, the key changes from the previous version.
- #5: Discuss ineffective nature of this mechanism, highlighting the stats from Manikis article on the numbers of PO applications made, and the number that were successful. Table 1. Case outcomes received by the Parliamentary Ombudsman from 1 April 2006 until July 2010 48 closed without investigation 2 accepted for investigation Out of remit 16 Discontinued 1 Premature (local) 8 Upheld complaint 1 No MP referral 13 Closed after withdrawn/referred back to complainants 6 (eg. Failure to return after being told to get an MP referral) (4) General discretion to decline 5
- #6: Explain the context of the Directive, in the field of justice etc and that under Lisbon Treaty arrangements, UK could have chosen to opt out of this Directive, but that the chose to opt in. Focus today will be on the key Articles relevant to victims with specific protection needs, what, in the UK context we would call vulnerable and intimidated victims.
- #7: Child victims are the only group presumed to have specific protection needs but the Directive makes it clear that an individual assessment of child victims is still required to ascertain the type and extent of measures required. The directive is clear that certain other victims should be given particular attention during this assessment i.e. trafficking victims.
- #11: Politicisation of the commissioning process. Creation of a postcode lottery for victims services.
- #12: Providing justiciable victims rights under the Directive should compel the state to observe its obligations in practice and not just on paper. Improving support and protection for victims with special protection needs increases the likelihood that they will engage with the criminal justice process and feel more able to give their best evidence in court. This improves their access to criminal justice. Providing legal redress for victims where their rights under the Directive have not been observed improves their access to civil justice. Manikis article Jackson 2003 argues that in order for criminal justice agencies to take their duties seriously, consequences must be attached to non-compliance. Problems associated with JR however, such as short time limit for application - 3 months and in any event promptly. Also, cost and procedural barrier + discretionary remedies. Also, standing may be that victims groups raise JR action on behalf of a particularly disadvantaged victim group. What will hopefully come about is a reworking of complaints procedure under the Code, rather than victims having to rely on JR.