Official Report: Minutes of Evidence

The Deputy Chairperson (Mr McCartney): I welcome Maura Campbell, deputy director of the criminal justice development division; Veronica Holland, head of victims and witnesses of crime branch; Tom Haire, head of the criminal law branch; and Graham Walker, acting head of speeding up justice and equality branch, who are all from the Department. I advise you that, as normal, the session is recorded by Hansard for the public record.
I invite you to make your opening presentation, and members will ask questions after that.

Ms Maura Campbell (Department of Justice): Thank you very much. I will start by giving a brief overview of the provisions in Part 4 of the Bill that cover the victim and witness charters and victim statements. I will say a few words about the two amendments we are proposing to Part 4 to enhance the provisions on victim statements and to create new information-sharing powers. We will take questions on that, and then we will move on to Part 6.

Part 4 places a duty on the Department to issue statutory victim and witness charters, which set out the services to be provided by criminal justice organisations, the standards that should apply and how victims and witnesses can expect to be treated. As you know, these clauses respond to a key recommendation in the report of your inquiry into services for victims and witnesses. They are intended to make the criminal justice process less daunting and, hopefully, easier for victims and witnesses to navigate. The Bill sets out broadly what each of the charters must contain as a minimum. Clause 28 specifies that the victim charter must provide for a victim to be treated with dignity and respect; to be informed about the services and support available to them and the progress of their case; to be given reasons where a decision is taken not to prosecute; and to have access to independent complaints mechanisms. Clause 30 requires the witness charter to set out the services to be provided by specified agencies, the standards for such services and standards for the treatment of witnesses.

The Bill also sets out what is meant by the terms "victim" and "witness" for the purpose of the charters, and that is at clauses 29 and 30 respectively. Clause 31 provides that each charter should be laid before the Assembly with its date of coming into operation subject to affirmative resolution. Finally, clause 32 covers the effect of non-compliance.

As you know, the victim charter has now been published and is already in use on an administrative basis. We were very pleased to see the Committee well represented at the launch event on 14 January and also that you got the opportunity to hear from the young people who created the young person's guide to the charter. We are planning to put the victim charter on a statutory basis by November 2015, and that is in line with the timetable for transposition of the European directive on minimum standards on the rights, support and protection of victims. So far, the response to the charter has been positive. However, if any issues arise in the intervening period, we will have the scope to make some final amendments before laying the charter in the Assembly. Work on the witness charter will be taken forward as part of our next action plan under the victim and witness strategy, which will take effect from April.

Part 4 also creates a legal entitlement for victims to make a written statement about the impact a crime has had on them. The Bill sets out who should be afforded the opportunity to make a victim statement, namely the direct victim of the crime, bereaved families and parents of child victims. It also allows us to prescribe, through regulations, the circumstances in which other persons may make a statement. The regulations will also set out when a statement would be made and how it should be used.

In terms of the Committee's consultation on the Bill, the responses to Part 4 were broadly supportive. A number of the issues raised had also been raised with us through our consultation on the draft victim charter, which overlapped with your consultation. Therefore, many of the points have already been addressed in the final version of the charter. We briefed you on those back in November.

You should also have in your pack the text of the two amendments that the Department proposes to Part 4. The first of these is to allow a person to include in the victim statement the impact that a crime has had on other family members in addition to the impact that it has had on them personally. That is in response to a suggestion that was made during the consultation on the draft victim charter.

The second amendment is to create information-sharing powers to help victims to make better-informed decisions about whether to take up the offer of victim support services, witness services at court and the post-conviction information-release schemes. Again, this responds to an issue that was highlighted in your inquiry report. At present, victims are told about these services by the police or Public Prosecution Service (PPS) and have to give consent to their details being passed on for the purposes of being given more information about how the service is operated by the service providers. This amendment would allow those who provide the services to make contact directly, though victims could still indicate at this point whether they want to take up the offer of the services.

I intend to pause here. If, as we go through this, members would welcome any further detail on the clauses, we can provide that.

The Deputy Chairperson (Mr McCartney): The charter will be laid by order. Will that be a statutory rule? What is the mechanism? Will it lie with the Assembly or the Department?

Ms Veronica Holland (Department of Justice): We will bring forward what is effectively a commencement order. So, that order will set out that the Assembly approves the date of the charter's coming into operation. As Maura said, we would hope to have that brought forward in the autumn with the charter to be on a statutory basis by November. It would be a similar mechanism for the witness charter when it is brought forward in due course, so that essentially the Assembly sees the document before it approves that document's coming into effect.

The Deputy Chairperson (Mr McCartney): As regards the manner in which other agencies apply themselves to the charter, who will be responsible for monitoring that? If agencies do not comply, will there be a sanction or some way of recording that they are not complying?

Ms M Campbell: In practical terms, it will largely be the victim and witness steering group, which has representation, not just of the agencies but the voluntary sector partners, Victim Support and NSPCC. There will also be a role for the victims' champions' forum, which is chaired by our permanent secretary. We will seek feedback on any issues that are raised about the charter by victims. We are also planning, as part of our next action plan, to look at complaints mechanisms and whether there are ways in which we can make improvements in how victims or witnesses bring forward complaints.

I suppose that, in relation to sanctions, what the Bill is saying is that the legislation does not create any new sanctions per se, but the charter would be admissible if a victim were to bring forward proceedings, for instance, through judicial review. In those circumstances, we are advised that the charter would be quite persuasive because it sets out very explicitly the services that should be provided. We are hoping that, because those are set out more clearly now than they have been previously, it should make it easier for a victim to seek redress in those circumstances. Ideally, what we want is for victims to get issues addressed earlier in the process rather than having to go to the court to seek redress. It is about monitoring and reviewing, but also looking to see whether we can make some improvements to how complaints can be made and addressed.

The Deputy Chairperson (Mr McCartney): Thank you. With regard to two aspects of clauses 28 and 30, on the victim and witness charters, any obligation on judges to treat victims with "courtesy, dignity and respect" is excluded. Is there any particular reason why that is not applicable to judges through the victim and witness charters?

Ms M Campbell: In relation to the judiciary, we need to look at this alongside the provisions that we are making for statutory case management in Part 8 of the Bill. At clause 79, there is a requirement to identify and respect the needs of victims, witnesses, children and especially vulnerable witnesses. We think that it is probably the best mechanism by which requirements involving the judiciary are set out, as opposed to through the victim charter. We are also aware of work under way through the Judicial Studies Board, and the Lord Chief Justice announced recently that he is planning to bring forward a new practice direction on vulnerable witnesses. Given the discussions that we have had with the Office of the Lord Chief Justice, we think that there are other mechanisms which could have the same effect of improving the experience of victims and witnesses from the perspective of the role of the judiciary. I must say that, in the feedback that we have had directly from victims and victims' organisations, not many issues have been raised in relation to the role of the judge in a case. It has tended to be in other areas.

The Deputy Chairperson (Mr McCartney): I am not saying that there is any issue around judges in this particular instance, but there is no legal impediment for including judges, if it were required?

Ms M Campbell: We felt it was just more appropriate to deal with it in the way we are doing, just to respect the independence of the judicial function. In relation to the PPS, where there is an exclusion as well, that is specifically in relation to prosecutorial decision-making. So, where prosecutors are sitting down to make a decision in a particular case, we have to be careful not to cut across their independence. In other respects, a number of the provisions in the charter will apply to the PPS, and it has agreed to that.

The Deputy Chairperson (Mr McCartney): Would the victim personal statement have been stronger had it been put into a place where it had weight or impact on the judge when he is sentencing someone?

Ms M Campbell: Again, we have to bear in mind the issue of judicial independence. I do not think that we can prescribe how much weight a judge in a particular case will place on the victim statement. I think that it is going to be very case-specific, and it is going to have to be looked at alongside all the other factors that the judge is considering in that case.

Mr McCartney: I do not want to interfere with the independence of the sentencing process, but there should be some acknowledgement. It would be a big acknowledgement to someone who has made the statement if there were some reference made to it by the judge. It might not state the precise weight that it should have, but it might state that the judge has to make reference to it. A victim should not think, "My statement did not seem to have any impact or did not get a mention".

Ms M Campbell: We did not include a provision that the judge would be required to make reference to it because, when we consulted with victims, some of them said that they would not want reference made to their statement in an open court. In particular, some bereaved families said that they would prefer that not to be stated in open court, particularly if they had other family members present.

The Deputy Chairperson (Mr McCartney): OK. Have members any questions?

Mr A Maginness: I do. I wish to follow on from what the Deputy Chair was saying in relation to the effect that a victim statement will have on sentencing. It is restricted, in determining the sentence in respect of the offence, to:

So it is "having regard to"; it is no more than that. That really is as far as you can go. Is that what you are saying? I understand your point about judicial discretion.

Ms Holland: I think the approach that we had adopted there was really in the sense that the victim personal statement is obviously very important as a part of that process, but it is one of a number of factors that the judge will take account of in determining what the sentence is. That is one reason why we have used that language. What we wanted to ensure was that, where a victim personal statement had been provided, it was given consideration as part of the sentencing process and looked at in the round more generally in the decision taken by the judge.

Ms M Campbell: In the guidance material that we have made available to victims, we say that there should not be an assumption made that the victim statement would have a direct impact on the sentence given: it may or may not. That has to be a matter for the judge. So we thought it important to be transparent with victims and —

Mr A Maginness: Yes, not to raise false expectations.

Ms M Campbell: — not to create an expectation there.

Mr A Maginness: I accept that point.

The other point is this — I am beginning to forget now — it is in relation to the offence that may give rise to a victim statement. Is it any offence whatsoever, or is it limited?

Ms Holland: It is unrestricted.

Ms M Campbell: We took the decision not to restrict it. In practice, we find that it tends to be used more in cases where there has been personal harm to the individual. It tends to be the more serious case where a victim elects to make a statement. However, what we have provided for is that, at the point where a decision to prosecute is taken, all victims are informed of the ability to make a victim personal statement. We make it clear to them that there is no requirement for them to do that. We offer them support in making the statement, and even in deciding whether to make the statement, through Victim Support and NSPCC.

Mr A Maginness: So, in practice, the prosecuting authority would say that you are entitled to make a victim statement, and that would be included in the papers that would eventually go to the judge, although they would not be shown to the judge before —

Ms M Campbell: Not before conviction.

Mr A Maginness: If somebody makes a victim statement that suggests or, indeed, asserts that a person has done much more than the offence for which he or she is charged and then convicted, what happens in that instance?

Ms M Campbell: That would be redacted by the prosecutor.

Ms Holland: That is an issue that we have also covered in the guidance. If there is material included that should not be, such as that, or a view is given on the sentence that should not be given etc, that information would be removed from the statement before it was forwarded to the court.

Mr A Maginness: That is very helpful. Clause 33 states:

What is a "natural person"?

Ms Holland: That refers to the notion that it is an individual, so it would not apply to businesses or corporations. Rather it is where there has been an impact on a —

Mr A Maginness: I have not come across that phrase before. Is that a new phrase that is used?

Ms Holland: It has been used elsewhere. I think Scotland has used that terminology as well. That is basically the reason for that being in there.

Mr A Maginness: I see. Thank you very much. That is very helpful.

The Deputy Chairperson (Mr McCartney): I will make just a couple of brief points. In relation to putting the victim statement on a statutory footing, what would the difference be between doing that and the position now in terms of its effect on a judge?

Ms M Campbell: It is not so much that it would create a likelihood that the judge would take more account of the statement now than he would have done previously. I think it is more about giving victims the encouragement to think about making the statement and to know that there is an entitlement, where it is possible for them to make a statement, for them to do so. It is an issue that we asked about when we were consulting at an earlier stage of the policy development — whether stakeholders felt that it would be helpful to place it on a statutory footing. The consensus view was that it would be useful. It would mean that, in circumstances where a victim had not been afforded the opportunity, there would be a stronger form of redress against that.

The Deputy Chairperson (Mr McCartney): Sometimes in the guidance document they are referred to as "victim personal statements", but the Bill refers to "victim statements". Is there any possibility of making sure that we have a single term, so that people do not think there are two?

Ms Holland: The terminology that is used in the legislation is due to the fact that the statement could also make reference to the impact on a family member or a bereaved family member. Counsel were of the view that, in that instance, it was going beyond just the impact on the victims. That is why the legislation is slightly different from the guidance documentation, but, in all of the material that the Department is issuing and the information that will go to victims more generally, or to anyone else who asks about the scheme, it will always be referred to as a "victim personal statement". We probably would have preferred it if "victim personal statement" was used in the legislation, but counsel were of the view that, technically, it was not appropriate to do that. That is why there is that slight difference between the two, but in all of the Department's information it will always be "victim personal statement" that is used. We think that that is a more meaningful term.

The Deputy Chairperson (Mr McCartney): You can make a personal statement and still talk about an impact on other people. It is just in case people think that there are two statements, or that one person gets one type and another person gets another type. It is more for clarity.

Ms Holland: I think that, in the explanatory and financial memorandum, we have referred to the fact that it is commonly referred to as a "victim personal statement" to try to deal with that issue, but I appreciate the concern that you raise.

The Deputy Chairperson (Mr McCartney): Assuming that this is passed, explanatory notes will become something else for other people, but the people in the court may see two different aspects of it and may be unnecessarily confused.

Ms Holland: We can certainly liaise with our colleagues in courts and other organisations that are using those statements to make it clear that that is the way the legislation is framed but that the terminology for common parlance is "victim personal statement".

Ms M Campbell: We are keen to make sure that people differentiate between those statements and the expert reports on the impact on a victim.

The Deputy Chairperson (Mr McCartney): There are no other questions on that Part. You can continue, Maura.

Ms M Campbell: I will move on to Part 6. Again, I will provide a very high-level overview, and I am sure that Tom will be happy to elaborate on the detail, if required. In Part 6, we are seeking to expand the range of matters that can be dealt with in court by way of live video links. It builds on the existing body of legislation that provides for live links to be used in a range of criminal court processes, including remand hearings, evidence given by vulnerable or intimated witnesses and in certain sentencing and appeal proceedings.

The Bill extends the use of live link facilities to include committal proceedings; certain hearings at weekends and on public holidays; breach proceedings; witnesses from outside the UK appearing in the Magistrates' Court and related appeal proceedings; and patients detained in hospital under mental health legislation. It also makes it easier, in procedural terms, for certain expert witnesses, such as forensic scientists or the police, to give their evidence by live links in routine cases.

We believe that the provisions will serve the interests of defendants and witnesses by helping to deliver a more efficient system with less scope for delay in arranging attendance at hearings, and we note that some organisations that support victims have welcomed the provisions as potentially helping to reduce the fear factor for intimidated witnesses. We see benefits in allowing patients detained in hospital to provide their evidence from a more familiar and supportive environment, and we think that it makes sense in the current financial climate for us to make the best use of the equipment already in place, as well as freeing up resources in prisons and at court. We think that it links back into Part 4 in that the provisions should, to some extent, help to improve the experiences of witnesses, help us to resolve criminal cases more swiftly and make better use of scarce public resources generally.

The Deputy Chairperson (Mr McCartney): I have no questions. Do any members have questions in relation to that? Everybody seems to be happy. Thank you very much for your evidence today.