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

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.

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.

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 Code’s 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.

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.

Article 22: Identification of victims with specific protection needs.

Directive:

•Member States shall ensure that victims receive a timely and individual assessment…to identify specific protection needs and to determine whether and to what extent they would benefit from special measures in the course of criminal proceedings…due 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.

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.

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 victim’s 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.

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.

•Children’s advocates.

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 Directive’s discretionary language.

– Government targeting of resources towards specific victim groups.

– Local commissioning of victims’ services by Police and Crime Commissioners.

The cycle of improved access to justice: