Official Report: Minutes of Evidence

The Chairperson (Mr Frew): The Committee will receive oral evidence from the following Department of Justice officials: Julie Wilson, the deputy director of the victim support and judiciary division; Claire Campbell, the assistant head of the victims and witnesses branch; and Deirdre McDaid from the victims and witnesses branch Bill team. You are all very welcome. Julie, you and I have met at another Committee, and you are very welcome to this Committee. I invite you to make an opening statement.

Ms Julie Wilson (Department of Justice): Thank you for the opportunity to present to the Committee on the victims and witnesses of crime Bill. We believe that the contents of the draft Bill are meaningful, necessary and provide the best opportunity to effect positive change for victims and witnesses of crime. I know that the Committee is also interested in the victims and witnesses of crime strategy 2025-2030. The draft strategy was informed by an initial call for views, which was followed by a further public consultation during June and July. That consultation attracted helpful feedback from a wide range of respondents. We are in the process of considering the consultation responses and making associated revisions to the draft strategy.

At this stage, we anticipate that the structure of the final strategy will remain unchanged from that on which we consulted. It has five core pillars, because the broad feedback was that the structure offered a useful framework for future focus. There has been a lot of support for the strategy. Many of the consultation responses indicated that it was trauma-informed and victim-focused. Importantly, however, concerns were expressed about how the strategy will be delivered. In particular, the Commissioner Designate for Victims of Crime indicated that she felt that more detail was needed on clear, ambitious and high-impact actions. We absolutely acknowledge that concern. Our intention has always been that the strategy should be a high-level one, setting out that strategic direction, but also that it should be supported by a series of action plans that set out the level of detail that the commissioner designate wants to see and by a performance framework so that we are able to monitor and evaluate its impact. We are working with key partners and stakeholders on both of those in order to inform the detail of a first action plan to accompany the strategy. We are also revisiting the strategy itself.

We are grateful to everyone who took the time to respond to the consultation. We are particularly conscious that it can be a difficult process for people who have experienced crime directly. We plan to bring the strategy, the first action plan and the performance framework to the Committee early in the new year.

Although the strategy and the Bill are separate priorities for the Department, they are interconnected, so they have been developed in parallel and by the same team. The strategy sets out the overarching vision for how we want to transform the experiences of victims and witnesses of crime, and it provides the structure and direction for how we intend to achieve that. The legislation will be a key enabler for some of the specific reforms and changes to be made under the strategy. In particular, the Bill will have relevance to a number of the core pillars that I mentioned.

The Bill team has led on five of the six Parts of the draft Bill. Policy responsibility for the two hate crime provisions sits elsewhere in the Department. Those measures will, however, provide additional protections for victims and witnesses of hate crime offences, so they fall within the draft Bill's scope. Although we have not developed those provisions ourselves, we will try to answer any questions that you may have on them. Chair, you mentioned the other five Parts of the draft Bill before the evidence session started. They relate to a statutory commissioner for victims and witnesses of crime; reporting duties for criminal justice organisations; pre-trial independent legal representation for complainants in serious sexual offence cases; third-party material disclosure applications in serious sexual offence cases; and a technical fix to do with the no bill procedure.

The provisions for a statutory commissioner for victims and witnesses of crime have largely been informed by the commissioner designate's learning and experience. Part of the commissioner designate's formal role was to help inform the development of the statutory role, so we are really grateful to Geraldine Hanna for sharing with us a comprehensive scoping paper setting out her recommendations, which have been really informative for us. We have also considered similar commissioner roles in Northern Ireland and in other parts of the UK. The commissioner designate role has demonstrated the value of having an independent voice for victims of crime. The commissioner designate has influenced policy at senior and strategic levels and ensured that victims' rights and interests are promoted. We also acknowledge, however, that, without statutory powers, there are some limits to the role.

I will now talk about the functions, powers and duties of the statutory commissioner in the draft Bill. The commissioner's overall remit and function is to represent all victims of crime and to promote their interests and rights. In the terms of reference, however, they will also specify that the role will have a specific focus on vulnerable groups, including victims of domestic and sexual abuse, victims of hate crime and other groups identified in the future. We have applied that model to the commissioner designate role, and doing so has been effective and allows for greater flexibility so that, as new forms of vulnerability emerge, a statutory commissioner can respond to those without the need for further legislative change.

The Bill will provide the commissioner with the scope to develop their own strategic priorities, objectives, programme of work and anticipated outcomes, having engaged with victims and witnesses of crime. Their powers are to include monitoring compliance with the Victim Charter and the Witness Charter; making representations or recommendations to any body or person concerning the interests of victims and witnesses; issuing guidance on best practice for victims and witnesses; providing advice to government; undertaking or commissioning research for educational activities; compiling information concerning the interests of victims and witnesses; providing advice or information; and publishing the outcome of research or their advice. The commissioner's functions will, however, also include reviewing law and practice on an ongoing basis, insofar as law and practice impact on the rights of victims and witnesses of crime. The terms of reference will include conducting a review into the effectiveness of the Victim Charter and the Witness Charter.

We considered how the commissioner should interface with other oversight bodies. That was informed by our consultation and by engagement with stakeholders. We concluded that the role should not include any inspection functions, because those are already in place. Likewise, we concluded that the commissioner's functions should not include reviewing decisions or complaints. Each of the criminal justice organisations has its own independent procedures for reviews and complaints.

We are, however, going to build into the legislation that the commissioner should have access to summary reports on complaints, as they will help provide a helicopter view of the issues and problems that victims and witnesses face across the criminal justice system and of how organisations are dealing with them.

Similarly, provisions are already in place on support and advocacy, and we intend the commissioner to have a strategic, systemic focus, so we have concluded that the commissioner should not ordinarily have a role to play in advocating for individual cases, save in exceptional circumstances. For example, the commissioner would have a role to play where there are safeguarding concerns or risks to health and well-being. We have therefore built that into the commissioner's functions as a safeguard.

The next Part deals with reporting duties on criminal justice organisations. Those are separate but related provisions that place a new duty on Victim Charter service providers — that is, on each criminal justice organisation or support service — to collect and publish data to demonstrate how they have complied with their Victim Charter responsibilities. That has been included in the Bill in order to assist the commissioner in their role of monitoring compliance. Fundamentally, it is also about driving improvements in victim and witness experiences across the criminal justice system.

Two Parts of the Bill include measures that flow from the Gillen review recommendations. The measures make provisions for dealing with serious sexual offence cases and are intended to improve victim confidence in the criminal justice system. The provisions, which are on legal representation for complainants in serious sexual offence cases and on greater regulation of the disclosure application process, are intended to give effect to best practice and to ensure that all relevant evidence is made available to the court, whilst also ensuring that the rights of both parties are upheld and protected.

The measures on the disclosure application process are based on existing non-statutory judicial practice guidance. They will ensure that applications by the defence for access to material that is held by third parties, such as counselling records, are specific and will require them to detail the reason that the information that is being sought is relevant to the case. The measures will also ensure that the complainant receives timely notification about the application so that they can seek their own independent legal advice on their rights.

Pretrial representation for victims in certain circumstances will support victims to defend their right to object to sensitive personal material being disclosed if it is requested by the defence. Again, in developing the proposals, we have engaged fully with stakeholders and considered similar provisions in other jurisdictions in order to develop provisions for Northern Ireland that are effective, appropriate and fair and that provide clarity for all parties.

I will now talk about the hate crime provisions. Judge Marrinan's review of hate crime in Northern Ireland expressed serious concerns that many victims could be discouraged from giving evidence if special measures were not considered and if perpetrators, alleged or otherwise, choose to exercise a right to cross-examine their victims in person. In response, the Bill makes provision for hate crime to be added to the list of existing offences — for example, domestic abuse offences — in which there is an automatic eligibility for special measures owing to fear and distress should witnesses in such cases desire such assistance. In addition, the Bill provides that any person who is charged with any offence under the new statutory aggravation model, which is included in the forthcoming sentencing Bill, will be prohibited from cross-examining the victim of a hate crime in any criminal proceedings. The aim is to provide greater certainty for victims and witnesses that they will not have to face the perpetrator in court.

Finally, the draft Bill makes provision for a legal, technical fix to be made to the no bill procedure in order to future-proof it against consequential changes as a result of committal reform. The Committee is currently considering the Justice Bill, which includes a measure to address a legislative loophole involving cases in which charges relate to the death of a child or a vulnerable adult. That measure will apply in order to avoid the situation in which defendants could avoid trial for murder or manslaughter by facing a lesser charge instead. The measures in the Justice Bill, although they work currently, will no longer be effective once committal reform comes in. The specific measure is needed in the draft victims and witnesses of crime Bill because the implementation of committal reform will result in a no bill application becoming an application to dismiss, which will render the wording that is in the Justice Bill out of date. The provision in the draft victims and witnesses of crime Bill is effectively a rewording in order to ensure that the process is future-proofed for the implementation of committal reform.

I will touch on the draft Bill's financial impact. We have considered the costs associated with it, and we are in the process of finalising a draft business case for the establishment of the office of the statutory commissioner. We anticipate that most of the Bill's other provisions will largely be delivered within existing resources, but that will be subject to ongoing assessment. We understand that some policy work is ongoing on the hate crime elements of the Bill in order to establish any cost impact. Any additional costs that are identified will be subject to a proportionate business case and appropriate approvals.

I hope that that has been a helpful overview of the provisions in the draft Bill and of some of the work that we are doing on the strategy. Thank you for your time.

The Chairperson (Mr Frew): Thank you very much, Julie. I will now bring in members.

Mr McGlone: Thank you for your presentation. It seems unusual that there will be provision in the Bill to remove the commissioner for a failure to carry out their duties. Are you anticipating anything that the rest of us should be aware of?

Ms Wilson: That is a fairly standard accountability provision — we do not anticipate it happening — that is purely about having appropriate governance and accountability arrangements in place. Claire, do you want to add to that?

Ms Claire Campbell (Department of Justice): Yes. In common with similar legislation, the Bill needs to provide a way for performance issues, should they arise, to be dealt with. There is nothing more sinister to it.

Mr McGlone: What is the accountability mechanism? That answer has taken us in the direction of performance rates and standards and how the person does their job, so what is the mechanism? Who manages the commissioner to make sure that they fulfil their role?

Ms Campbell: The role of the commissioner is an independent one, and the commissioner needs to be independent from government. They will be required to set out their plan for the role, detailing their work programme and what they hope to achieve, and to produce an annual report. Although they will be independent, it will be up to the Minister of Justice to deal with any performance issues.

Mr McGlone: Is it in statute that it is for the Minister to do that? There are two ways of looking at it. One is from the perspective of the commissioner who is in the job and does it well. They are supposed to be independent, however, so at what point, if it is for the Minister to decide on performance-related issues, such as whether rules are complied with or standards are met, does the Minister cross over into interfering with that independence? Where do you draw the line between independence and interference? Is there a mechanism in place?

Ms Campbell: I suppose that it will be for the Minister to consider what, as part of their duties, their role is.

Ms Wilson: The commissioner's work will be measured against the standard that they set in their work plan and so on, so whether there is failure to deliver without good reason will ultimately come down to the test of reasonableness against things such as audit and the other governance and accountability measures to which the commissioner will be subject. Any decision will be informed by performance against standards that have been set in advance.

Mr McGlone: That is grand.

The Chairperson (Mr Frew): Before I bring in Brian, I have a point to make, following Patsy's question, about the issue of the commissioner's independence. The Department has a strategy for victims, along with action plans, but a commissioner could set their own strategy on how to proceed. What happens if one does violence to the other? What if the commissioner campaigns for something with which the Minister and the Department disagree?

Ms Wilson: The provisions will set out that a commissioner can make recommendations and that they need to be considered and responded to. Obviously, the Department and the Minister and any criminal justice organisation will take any recommendation from a statutory commissioner seriously. We would have to have really strong grounds not to comply with those recommendations. That could include that we do not have the resource to do it, but there would need to be really a strong, reasonable rationale for not complying with a recommendation from a statutory commissioner.

That said, in the draft legislation, the requirement is for consideration and a response. It is not that we absolutely must do everything that a commissioner says. As good practice, any Department that is subject to scrutiny by a commissioner will want to engage positively. Certainly, with the commissioner designate, we have taken the approach of engaging consistently and constructively to learn from what the commissioner sees in their engagement with victims in terms of the statutory role, what they see in terms of compliance, etc. The commissioner is there to act as a critical friend, but also to show us where we need to improve and what is best practice. We do not absolutely need to do everything: that would go to far within the legislation. However, there would need to be a strong rationale for not considering very carefully recommendations that the commissioner makes.

The Chairperson (Mr Frew): You worry about how much the commissioner can be a champion of victims and witnesses of crime if that is at odds with the government policy of the day. There is friction in that regard. However, you are robust enough to withstand that critique when it comes?

Ms Wilson: My sense, and what I see, is that, where there are commissioners, government takes them seriously. It will not be the case that everything a commissioner says is possible. However, in my role as director of victim support division, I would take seriously what a commissioner said and give really strong consideration to what a commissioner recommended. I would be providing advice to the Minister on that basis, taking into account what our resources are, competing priorities, etc. I would also engage with the commissioner constructively so that they understood where our pressures are and so that their recommendations were informed by what we are experiencing. Yes, a commissioner can be there to hold us to account and say when we are failing, but they are also there to help us look to the road ahead, see where we need to go and help us to find that direction. There are multiple ways to engage, and that relationship is complex. It is about learning, being a critical friend and being held to account. We need to be open to all that.

The Chairperson (Mr Frew): What sort of secretariat, staff and accommodation will the commissioner have, and how much will it cost? Is that cost borne by the Department of Justice, with all the pressures that we see in the police, the Prison Service, Probation Board and all that?

Ms Campbell: Obviously, value for money is a driving force behind all this. We are using the experience of the current commissioner designate role. That has been a useful learning to see what this office might need and to use it. The commissioner designate's scoping paper was really helpful. However, we want to make sure that the commissioner also has the resources that they need to deliver on their strategy. It will be small, but it will be, hopefully, sufficiently resourced. We are still working with the commissioner designate on teasing out what that should look like. It will be comparable to similar commissionerships.

Mr Kingston: Thank you for the presentation. As the Chair said, it is our duty to challenge the value, and value for money and additionality, of creating another commissioner in Northern Ireland. I note that these exist elsewhere, but Northern Ireland has quite a complicated criminal justice system, with a number of organisations. I am not going to ask you to explain everything on the purpose of the role. However, there is currently a commissioner designate, and they have, presumably, been established without legislation. Is that right? How was that post established, and, if legislation is now required to create a commissioner's office, what will be the difference there, given that the commissioner designate is presumably doing some worthwhile work without legislation in place?

Ms Wilson: Absolutely. The designate is doing very worthwhile work and is having a really significant influence on how policy is developed and on outcomes for victims and witnesses. When the designate role was established, it was always intended to be the forerunner for a statutory commissioner. There was not the ability to introduce that legislation in the previous mandate, but the Minister nonetheless wanted to move ahead and put in place someone who could provide that independent voice for victims of crime. As part of that, the designate role, as I said, was also intended to help to scope out what a statutory role should look like. Part of it was looking at what additional powers would be useful. There is the power to look at compliance. That is not just a power; there is a whole set of operational arrangements that need to be in place to allow that to happen so that there can be data on victim and witness outcomes in the criminal justice system that a commissioner can then look at and can take the temperature of how well organisations across the criminal justice system are doing regarding their duties to victims under the charters. A lot of what is in the Bill has been shaped and informed by the commissioner designate role, but the commissioner designate role was always intended to be time-limited and to eventually be replaced by a statutory commissioner.

Mr Kingston: We will all speak up for the needs of victims of crime and witnesses to crime; absolutely. I think that you said that the commissioner's role will not include an appeal mechanism. Is that right? I think that might be a cause of confusion. If a person who is a victim of a crime is dissatisfied with the outcome of a trial, they might think that they can appeal to the commissioner. Is it correct to say that there is not expected to be any such function?

Ms Wilson: The commissioner role is intended to be a strategic role. It is intended to see how the system needs to change and how the system can improve, so it is setting the sights higher than an individual advocacy role. Certainly the current practice is that the commissioner designate meets a lot of victims but does not advocate on individual cases. However, they will use that engagement with victims to identify systemic issues that need to be addressed — things like victim personal statements. Those have been raised with the commissioner designate, and she has been working and pushing to influence and shape policy on those. It is about learning from individual cases to see what are the specific issues that we need to address rather than intervening on specific cases, aside from the exceptions that I set out, where the commissioner maybe meets a victim and believes that there are safeguarding concerns. That has been informed by engagement by the commissioner designate. The Bill would allow the commissioner to intervene in certain exceptional circumstances, but that, as a rule, is not the intention. The intention is to focus on what levers need to be pulled to change the system so that it delivers better for victims and witnesses overall.

Is there anything else?

Ms Campbell: I do not think so. No, I think you covered it.

Mr Kingston: That is fine. Thank you.

Ms Egan: Thank you for presenting to the Committee today. I am also really interested in the work of the commissioner. I have seen the work that the commissioner designate and her office have done on policy development so far through their engagement with the Committee and with APGs, in briefing papers or through interactions with my constituents. Her office's work has been extremely valuable, and it is brilliant that we are going to have that on a statutory footing. I have a few questions on the role, if you do not mind. In your paper, I noticed some proposals that the commissioner's remit should be wider than the criminal justice sector, perhaps crossing into issues that affect other areas such as education and health. Can you elaborate on why it was decided not to give the commissioner a wider remit?

Ms Wilson: I will turn to Claire and Deirdre for this. The commissioner will be able to make recommendations, but the duty to respond to those recommendations is focused on Justice at this time. Claire, would you like to come in on that?

Ms Campbell: That was considered when we were looking at proposals. We did a lot of stakeholder engagement on whether the commissioner's role should extend to making recommendations to the Education and Health Departments. The Minister wrote to her Executive colleagues and, based on the responses, decided that, although there may be a point in the future when the role would extend into those other Departments and areas, for this Bill and the rest of the mandate, it should relate only to criminal justice. As Julie said, however, there will be scope for the commissioner to exert influence by making recommendations or suggestions or giving advice to anyone or any body. That power is there; there is just no mandate for action to be taken, because it was not considered that that would be feasible if the commissioner were limited to the area of criminal justice. I hope that that explains where we arrived at.

Ms Egan: Thanks for clarifying that; I appreciate it. To follow up on that, there were some other suggestions that I read in there, including a suggestion that the Department should have a legal duty to respond to the commissioner's annual report. What is the Department's feeling on that?

Ms Campbell: That the Department should be required to respond? The commissioner can give advice to government; that has been accepted. As Julie said, the Department would be expected to respond to that. Is it the annual report that you are talking about? The commissioner's annual report?

Ms Egan: Yes. It is about having a legal duty to respond to that report. Do you think that that is needed?

Ms Campbell: I do not think so.

Ms Wilson: We have accepted that it would be valuable if there were a duty to respond to recommendations. Where there was an annual report, we would want to consider it, as we would with any commissioner's annual report. We would want to consider anything that a commissioner produced or engaged us on. Whenever the commissioner makes firm recommendations, that is where the duty is on us to respond and to say what we are going to do with those recommendations and how we are going to act on them. That is the most effective way for us to engage and for that duty to fall on us.

Ms Egan: OK. No problem. Thank you.

The Chairperson (Mr Frew): We all recognise the need for support for victims and witnesses of crime. However, there is also the truth that someone is innocent until proven guilty, so there will be an accused in that equation. How do we balance the rights of an accused with support or further support for witnesses of crime? Also, how would that play out in a court setting with regard to the new Bill and the measures outside of the commissioner — the private information and the third-party representation?

Ms Wilson: Defendants are already entitled to support. The Bill is not about interfering with anybody's article 6 rights. It is about safeguarding the article 8 rights of complainants without compromising in any way the article 6 rights of the defendant. Parts of it flow from the Gillen review and the recognition that the experience of complainants and witnesses in serious sexual offence cases in particular is particularly challenging. Widespread concerns have been raised about how applications for disclosure of third-party material can impact on, for example, a complainant's willingness to access counselling in case their counselling records are disclosed to the court. This is not saying that your counselling records cannot be disclosed to the court. This is basically putting into statue existing practice to ensure that there needs to be a relevance to the case, and requiring the defence to set out what is needed and why it is needed. It is about responding to concerns that have been raised and protecting article 8 rights. However, it is also recognising that a defendant has article 6 rights and that some material needs to be before the court, and this will not prevent that from happening.

The Chairperson (Mr Frew): This is a brutal question, but there is a danger that there could be a hierarchy of victims with regard to how they are treated in a court setting. I know that it is coming out of Gillen, and we all lived through the Gillen report at that time — we scrutinised it — but there will now be differences in how a victim of sexual crime is treated compared with a witness of other crime.

Ms Wilson: It is recognising the very personal nature of sexual crime and the very sensitive nature of the types of information that are sought in sexual offence cases. It is not saying that there will not be some cases when that information does need to be provided to the court, and it allows for that to happen, but it is recognising that it is very difficult for complainants in sexual offence cases to go through the trial process.

The Chairperson (Mr Frew): Who decides whether that should be relevant? Is that a Crown Court judge?

Ms Wilson: The application is made to the judge, and this sets out what information is required as part of that application.

Ms Campbell: Ultimately, the judge will do that balancing of rights and make sure that all rights are protected. That is the ultimate choice about balancing.

Ms Wilson: It is putting into statute what is already in a practice direction, so it should be existing practice.

The Chairperson (Mr Frew): OK. Thank you.

Ms Ferguson: Just a quick one. Mandatory publication of the statistics is good to see, because we will be more informed about the data. What organisations in the criminal justice system fall within the scope of that, or is it all of them? It is great to see, too, that there is accountability regarding the victims' charter. However, there is a 56-day time limit to return that information. What is it like in England and elsewhere with regard to organisations being able to provide that information? Have you looked into what resources may be required within the organisations in the criminal justice system in the North? Are they up for it? I would like clarity on the information and the data that organisations will need to provide.

Ms Wilson: There is a separate piece of work which is really related to that. It is about working with the commissioner designate to look at what information should be reported on. Data capture and reporting arrangements need to be in place to support the delivery of this bit of legislation. Do you want to say a bit more about that?

Ms Campbell: Yes. There is a victim data working group, which was set up because we do not have cross-sectional data on victims from beginning to end. We are using the work to prepare organisations so that they are ready and able to respond to that statutory requirement for them to provide victim data on compliance with the Victim Charter. The work that we are doing is based on those metrics and on the charter. It is basically every interaction with and responsibility towards victims and witnesses. It is about building up a picture of what is available and what is missing so that we can have an overview of a victim's journey at every stage from beginning to end. The administrative work that we are doing now will hopefully pay dividends once the statute comes in.

Ms Ferguson: Is it all organisations? Are there ones that are exempt? Do any of them perceive there being any challenges?

Ms Campbell: They are all on board. It is a very wide-ranging working group. It includes all the criminal justice agencies, Victim Support NI and the NSPCC. We are doing all of that.

Ms Ferguson: Thank you.

Ms Campbell: No problem. Thank you.

The Chairperson (Mr Frew): There are no further questions from any other members. Thank you for your time and your evidence. We look forward to scrutinising the Bill.