Strasbourg, 17 September 2003
Working party n° 2 of European Commission for the Efficiency of Justice (CEPEJ-GT2)
“The Users of the justice system vis-à-vis the slowness of justice: how to remedy ? Two symbolic situations.”
Victims of crime
Report by Helen REEVES (United Kingdom)
1.1 The historical context
The question of excessive length of judicial proceedings is considered by many as one of the main obstacles to the smooth and effective functioning of justice. For this reason, the European Commission for the Efficiency of Justice (CEPEJ) has commissioned research on the delays in Europe and is looking at two specific areas in which delay is particularly painful to the users of the justice system (i) divorce proceedings and (ii) victims of crime.
1.2 Delay in the excessive length of judicial proceedings: impact on victims of crime
This report will concentrate on the position of victims of crime in England and Wales and in particular on their suffering resulting from the excessive length of judicial proceedings. The report will make recommendations as to what measures should be implemented to remedy such suffering.
1.3 Objectives of the report on delay in the excessive length of judicial proceedings: impact on victims of crime
The objectives of this report are to find remedies to delays and to determine concrete measures which can be disseminated to professionals in the justice area of the member states, particularly through best practice guides.
2. Victims of Crime in England and Wales- a decade of change
Over the last decade, there have been substantial changes in the way in which victims and witnesses are treated in England and Wales. The current government has made a commitment to provide better support for victims and witnesses who are deemed vulnerable. “This commitment arose from concerns that while measures are in place to assist child witnesses, many adult victims and witnesses find the criminal justice process daunting and stressful, particularly those who are vulnerable because of personal circumstances, including their relationship to the defendant or because of the nature of certain serious crimes, such as rape. Some witnesses are not always regarded as capable of giving evidence and so can be denied access to justice. Others are in fear of intimidation, which can result in either failure to report offences in the first instance, or a refusal to give evidence in court”. 1 In addition, media reports of a rape trial in 1996 drew the public’s attention to the trauma and suffering caused by a loop-hole in the law at that time in which a defendant who was not legally represented could then cross-examine the witness in court himself. Another case was highlighted in 1996 in which a witness with learning disabilities encountered problems communicating in court, the result was to illustrate the problems experienced by those with learning disabilities when having to give evidence in court.2 Hence, the government embarked on a programme of improvement of conditions for vulnerable witnesses in court.
The government established an inter-departmental working group to tackle such problems. The resulting report, entitled Speaking Up for Justice (1998), is the report of this inter-departmental working group on the treatment of vulnerable and intimidated witnesses in the criminal justice system. 3 A total of 78 recommendations were made as a result of the findings of this group. Many of these recommendations involve the implementation of special measures to assist witnesses to give their best evidence in court. These recommendations were included in the Youth Justice and Criminal Evidence Act 1999, part II. 4 Speaking Up for Justice also made recommendations concerning the problem of witness intimidation. 5 In England and Wales, witness intimidation is recognised as a fast-growing problem on large housing estates and as well as affecting a witness’ ability to give evidence. It may prevent witnesses from reporting incidents to the police. A major programme of evaluation is currently taking place in England and Wales to assess the success of the implementation of special measures which were recommended in Speaking Up for Justice.
3. Delays in the Criminal Justice system- Government responses.
3.1 Reducing delay in the 1990s: In 1997, Martin Narey undertook an extensive review of delay in the Criminal Justice System in England and Wales.6 The research was conducted as delays in cases were becoming increasingly lengthy, averaging around 24 days between adjourned trials in the magistrates’ court during the period 1987 - 1996. Despite significant reductions in the number of cases coming to the criminal courts in the years leading up to 1997, there had been deterioration in the speed at which those cases were brought to completion. The average time between the first listing and the completion of the case at magistrates' courts deteriorated from 41 to 60 days.
3.2 Recommendations from the Narey Report: Narey and his colleagues made several recommendations.7
Ÿ Dealing with guilty-plea cases promptly: Guilty pleas can be predicted in about 65 per cent of magistrates' court cases. These cases could be completed without adjournment, saving on wasted adjournments.
Ÿ Pre-trial reviews in contested cases: The remaining 35 per cent of cases would be dealt with initially at administrative hearings.
Ÿ Legal aid: Evidence from courts suggests that the highly bureaucratic assessment of financial means can cost more than income from contributions received from the defendant. The greater reliance on duty solicitors and the swifter completion of cases should afford considerable savings to the legal aid fund. Prior to the Narey report, the White Paper "Striking the Balance: the future of legal aid in England and Wales" (1996) noted that: "there is nothing to discourage the defence from unnecessarily delaying the trial process simply to 'put off the evil day' or in the hope that this will obstruct a fair trial ".8
Ÿ Youth Court: additional prosecutions of those aged 16 years old and younger.
Ÿ Pre-trial preparation in the Crown Court: Plea and directions hearings to continue in all cases at the Crown Court, but the number of cases each year would drop to about 60,000 (because of the election for trial proposals also suggested at this time).
The “Reducing Delay” initiatives have together, significantly reduced average times between charge and disposal.
3.3 Reducing delay in the 21stcentury: Narey (2002) then Director General of the Prison Service in 2002 still found that delay in the criminal justice system was a major problem “delay contributes so significantly to the size of the prison population…The recommendations made then, but implemented by Jack Straw, did make a difference and waiting times from charge to completion are 20% shorter now than before the changes were made, but the system remains unbelievably slow and cumbersome, and we can hardly celebrate the fact that it still takes an average of 9 weeks from a defendant being charged to his or her case being completed even in a Magistrates Court...Last year, there were 5 million recorded crimes. About half a million of those led to prosecutions at the magistrates Court. About half of those, about 272,000, were convicted, but nearly 30% of the cases brought to court were terminated early without a conviction or acquittal. And additionally, of the prosecutions for which a conviction followed, a significant proportion would have been for lesser charges than made by the police at the outset.”9
3.4 Background to current reforms: The Auld Report (2001) included a suggestion to conduct a review of the way in which criminal justice agencies prepare for and manage criminal proceedings. Currently, no one organisation has the responsibility for ensuring cases are managed effectively and current incentives and sanctions are not sufficient to motivate parties to prepare cases early.10
3.5 The Case Preparation Project: (CPP) This is a tri-partite project group comprising stakeholders from the Home Office, the Department of Constitutional Affairs (the former Lord Chancellor’s Department) and the Crown Prosecution Service which will consider ways to improve case preparation and management within the criminal courts as part of a package of criminal justice system reforms. The project will consider a wide range of forms and procedures that are currently used within the criminal justice system from charge to disposal. It will take into account the development of supporting roles and responsibilities together with enabling mechanisms to facilitate the process for all Criminal Justice Practitioners, ensuring that all cases are progressed effectively. From April 2003, the Case Preparation Project will pilot new processes and the development of supporting enablers in seven Criminal Justice areas over 12 months. If the evaluation proves successful, the national rollout programme will take place over two to three years. This process will run in tandem with proposed changes and legislative reforms.11 The importance of this project vis-à-vis victims and witnesses is that new case progression arrangements (encouraging better and early preparation by all agencies) and the use of sentence discounts/ advance indication of sentence (encouraging earlier guilty pleas) will reduce the number of times witnesses attend court unnecessarily (through substantially reducing the number of adjourned hearings and ineffective trials), and will also improve the availability of information on the status of the case, the trial date, thus leading to more fixed hearings.
3.6 Narrowing the Justice Gap: There is a “justice gap” in crimes recorded by the police which result in their perpetrator not being brought to justice. The Narrowing the Justice Gap team aims to increase convictions and thus increase victim confidence in the criminal justice system. They are to tackle this by focusing on particular offenders, offence types and encouraging inter-agency cooperation. In 2001, 30,000 (17%) of the cases discontinued by the Crown Prosecution Service (CPS) were terminated because of the failure of civilian witnesses to attend court or their refusal to give evidence. Witnesses’ time is often wasted as they are called for hearings that never take place because the case is not ready or because defendants change their plea at the last minute. There is a need to raise the level of confidence among victims that the criminal justice system will bring perpetrators to justice so that, they will be more likely to act as witnesses. This in turn should reduce the number of cases which result in avoidable discontinuances, which will mean more offences are brought to justice, and witnesses would be more likely to give evidence in court. So that more cases can be brought to justice. This would help to increase confidence in the criminal justice system even further. And of course, it would reduce crime too, since catching and convicting an offender is the most effective way of shortening their criminal career.12 “The public must know that the Criminal Justice System is good at what it does. That the system is good at judgments about bail, that cases take place when they are listed, that defendants turn up on the day and if they don't they pay a price. That the prosecution case is properly prepared, that sentencing connects with the community and that sentences are enforced - fines paid, community punishments complied with, prices paid if those conditions are not met, if necessary by custody.”13
4. Vulnerable and Intimidated Witnesses
The Youth Justice and Criminal Evidence Act (1999) (section 16) defines vulnerable witnesses and intimidated witnesses (section 17) as:14
Ÿ All witnesses under the age of 17 at the time of the hearing
Ÿ Witnesses with a physical disability or suffering from a physical disorder
Ÿ Witnesses suffering from a mental disorder or a significant impairment of intelligence and social functioning
Ÿ Witnesses whose quality of evidence is considered to be diminished because of their fear and distress about testifying
4.1 Juvenile witnesses: Child witnesses are a particular group of vulnerable witnesses which the law has already recognised are in need of special protection. Section 44 of the Children and Young Person’s Act 1933 states that “every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person.”
4.2 Physical disability: Witnesses who have a physical disability which would prevent them giving best evidence
4.3 A mental disorder or a significant impairment of intelligence/ social functioning
Ÿ Mental Disorder: individuals are subject to a court order on the grounds of suffering from a mental disorder
Ÿ Learning Disabled witnesses: individuals who appear to have a “significant impairment of intelligence and social functioning”. Individuals with learning disabilities experience difficulties in understanding lawyers’ questioning, particularly during the more intensive cross-examination. These problems relate to difficulties in understanding legal jargon, complex syntax, complex vocabulary and use of negatives and double-negatives.15 Learning disabled witnesses experience difficulties with encoding, storage and retrieval, thus appear vague when responding to questions which need accuracy of memory, such as exact time and dates. 16
4.4 Distressed Witnesses: Some witnesses may be so overcome by fear they become too distressed to be able to give evidence in court.
5. Special Measures
5.1 Background to Special Measures: Special Measures in court were introduced in recognition of the fact that many witnesses are vulnerable, feel too frightened to give evidence or are intimidated by an individual or by the judicial process. Witnesses may be vulnerable through age, physical or mental disability (see 4). The Youth Justice and Criminal Evidence Act 1999 Part II provides for a range of special measures aiming to help vulnerable or intimidated witnesses to give their best evidence in criminal proceedings. 17The police identify the witnesses likely to be eligible for special measures and notify the Crown Prosecution Service (CPS). The CPS considers the information provided by the police and the witness and decides whether to make an application to the court for a Special Measures Direction. Application for special measures may be made by all witnesses, both prosecution and defence, but not for the defendant. The implementation of these measures assists vulnerable and intimidated witnesses to give their best evidence.
5.2 Speaking Up for Justice: The special measures recommended in Speaking Up for Justice (1998) by the inter-departmental working group on the treatment of vulnerable or intimidated witnesses, of which almost all have already been implemented in all Crown courts and Magistrates courts in England and Wales include: 18
Ÿ Screens- shielding the witness from the accused
Ÿ Giving evidence via live television link
Ÿ Removal of wigs and gowns
Ÿ Video-recorded pre-trial cross-examination *
Ÿ Giving video recorded statements as evidence-in-chief
Ÿ Aids to communication if necessary, alphabet boards
Ÿ Use of an intermediary to help witnesses with severe communication difficulties to put across their evidence in a way that can be easily understood in court, during cross-examination but without interfering with the evidence itself *
Ÿ Power for the judge to clear the public gallery in cased involving sexual offences or intimidation so the witness can give evidence in private
Ÿ Discretionary reporting restrictions for witnesses who are intimidated
Ÿ Discretionary ban on defendant cross-examination in person in cases other than sexual offences (where a mandatory ban has already been placed)
Note: * Two measures, intermediaries and video-recorded pre-trial examinations are still being piloted, before a decision on national roll-out can be taken.
5.3 Implementation: Equipment has been installed in almost all Crown and Magistrates courts in England and Wales. A Witness service is in place in every Crown and Magistrates court to provide practical and emotional support to witnesses who have to give evidence in court.
5.4 Improvements: Improvements in the identification and carrying out of risk assessments of vulnerable and intimidated witnesses have been made. Greater communication within the criminal justice system about the needs of victims and witnesses, including consultation between the Police and the Crown Prosecution service on what special measures would assist a witness are now mandatory. Pre-trial meetings between the CPS and the witness also take place. Judges also receive information and guidance so that they are aware of what special measures will be in use during the trial.
5.5 Changes in legislation: The ban to prevent the defendant from conducting the cross-examination in person in rape and serious sexual assault trials was implemented on 4 September 2000. Further measures to restrict the admissibility of evidence in relation to a victim’s previous sexual history were implemented on 4 December 2000.
5.6 Training: Training needs analysis has been conducted with those working with vulnerable and intimidated witnesses within the criminal justice system.
5.7 Evaluation of Special Measures: Current evaluation and revision of the application of the special measures is underway in the Police, the Crown Prosecution Service and amongst forensic specialists. Research evaluating the effectiveness of special measures and associated provisions by the Youth Justice and Criminal Evidence Act will be published in April 2004. A whole range of guidance and training materials for the criminal justice agencies has been published. 19
6. The Witness Service
6.1 Background to the Witness Service: The Witness Service (provided by Victim Support) is now available in all Crown Courts and Magistrates’ Courts. For many witnesses who simply feel uncomfortable in the court environment, the reassurance, emotional and practical help provided by the Witness Service may be sufficient. All witnesses who are due to attend court to give evidence are supported during their experience by Witness Support staff or volunteers who have been specially trained. The Witness Service provides information prior to the day of the trial and offers a pre-trial visit to see the courtroom before the trial, as well as offering information on the progress of their case, on facilities in the court building and providing support on the day of the trial. It operates in accordance with the national standards of service for witnesses in criminal cases.20
A Witness Service Co-ordinator says, “…our aim is to ensure that, as far as possible, witnesses are supported, relaxed, comfortable and informed. 21 Most people have never been in court before and the experience can be stressful and overwhelming. We provide practical and emotional support to them on the day of the trial and, if appropriate, in advance. Support is offered to victims, prosecution and defence witnesses and to anyone accompanying them such as family and friends.”
6.2 Cooperation between criminal justice agencies: “A successful criminal justice system depends on proper co-operation between police, prosecutors, courts, probation, prisons, youth offending teams and defence. That co-operation is all the easier if independence is transparently embedded in the system. The Criminal Justice System must serve the community. The public must have confidence that it understands the needs of victims and witnesses.”22 “The authorities try to take the views of the witness into account. Consultation and liaison between the police, the CPS, court staff and the Witness Service before the trial date and also on the day of the trial eases the process as much as possible for people testifying. In recent years there has been a move towards a concern for witness care, and changes in practice and legislation have greatly improved the conditions under which victims and witnesses go to court to give evidence.23
6.3 Young Witnesses: For young people, the Witness Service can provide young witness packs to help familiarise them with the court process. It includes booklets aimed at parents and carers of young witnesses and a range of booklets and materials for use by different ages groups from 5 to 17. The pack is produced by the National Society for the Prevention of Cruelty to Children (NSPCC) and paid for and provided to the Witness Service by the police child protection units.
6.4 Witness Service Personnel: The Witness service's staff are mainly volunteers, trained and supervised by paid personnel, who are all trained to carry out a court code of practice and to deal with victims and witnesses of crime. Staff listen to and empathise with witnesses but staff do not conduct counselling, they simply provide practical and emotional support. Witness Service personnel or volunteers can also be useful as an efficient way of alerting uniformed security personnel or the police to an actual (hitherto unidentified) physical threat to the witness when he arrives in the court building.
6.5 After-care: Victim Support as well as other agencies details are provided by the Witness Service for contact after the trial is over. In cases where the offender has been prosecuted, special measures can be taken by the police to ensure that the offender does not return to the vicinity of the victims’ workplace or home during the provision of bail or post sentence parole.
6.6 Current work by Victim Support and the Witness Service on Vulnerable and Intimidated Witnesses: Victim Support in England and Wales has received funding for specific work with Vulnerable and Intimidated Witnesses. The purpose of the specific service provided by Victim Support and the Witness Service is to enable vulnerable and intimidated witnesses to deal with the experience of attending court and giving evidence and to help them give their best evidence. Every Victim Support area is expected to work towards providing a service to vulnerable and intimidated witnesses and this service is to be offered to both prosecution and defence witnesses. The main problems are that vulnerable witnesses are often not identified until the day of the trial. Due to late identification of vulnerable and intimidated witnesses, the witness is ill prepared for the trial, opening up the potential for the case to be postponed or to fail. Also, the Witness Service then on the day has to make requests to the court for Special Measures but the courts are not prepared, thus it takes up Witness Service managers’ time on the day and disrupts management of volunteers. There is a need to identify vulnerable and intimidated witnesses earlier as well as a need for inter-agency working and attention to referral mechanisms.
7. Witnesses and Victims: what they need to know and what rights they should have
7.1 Treating witnesses with dignity and respect: As outlined in Justice For All, “the administration of justice depends on the witnesses, and they need to be treated with dignity and respect at all times.” 24 We should remember that victims are key to the judicial proceedings and should be placed at the heart of the criminal justice system. We should be understanding at all times.
7.2 Access to Information: When witnesses are asked what could have improved their experience of giving evidence in court, they often say “information”. Information is the key to a witness’ experience and is one of the most important ways to build confidence in the criminal justice system. The information required entails being sent information prior to attending court, having more information and help from the police and CPS before and during the trial, being updated on what is happening in the trial or why there are delays. Levels of overall satisfaction are strongly related to whether witnesses received enough information before coming to court and whether they were kept informed while waiting at court. Information gives witnesses a better understanding and awareness of what is expected of them.25 Victims and witnesses become frustrated at being left alone to cope, sometimes feeling let down, ill-informed and badly treated. One witness in a study in 2003 said “ I was a witness to a road accident a few years ago. I was threatened by four youths in the court waiting area and had to sit next to the defendant. There was no-one there to protect me.”26 Often, they are not routinely kept up to date with what is happening, how the trial is progressing, why the case was thrown out of court, what the verdict was and often they are not told when an offender is going to be released. A vulnerable witness support project worker in England, who supports victims from the time of the victim reporting the crime to the court case and sometimes afterwards, suggests, “every witness and victim should be assigned a Witness Liaison Officer who lets the witness know what is going on in their case. This can make people feel reassured if nothing else. I understand that it is not the Police’s jobs to care for and provide information to witnesses and victims and so this is why we need independent bodies (Victim Support, Witness Service, CPS etc) to arrange for these types of Officers to carry out this function”.27
In a recent move to improve the level of information given to witnesses in England and Wales, the Crown Prosecution Service has been provided with an £11 million government budget to run a project entitled “Direct Communication with Victims” to ensure that victims are provided with an explanation when the prosecution decision is to discontinue the case or to alter the charges substantially. In certain serious cases such as death, child abuse, sex offences or racially aggravated crime, the CPS offers to meet with the victim or victim’s family to explain the basis of the decision. 28 In his research, Sanders stated “this approach is consistent with the victim’s rights model without infringing the principles of the due process”. He also considers that the provision of information is a “service” right and that there can be no “in principle” arguments against it in any case.29 There is however scope for further improvement, particularly in the use made of electronic information. For example, in the 2002 Witness Satisfaction survey 15% were aware that information on being a witness was available on government websites, but only 1% used them to get information30. However, victims need not only information but also the knowledge that they will be supported. “There is good evidence that victims need better information from the criminal justice system, and that they want their losses and feelings taken into account”.31
7.3 Impact of crime on victims Walklate states that “the evidence seems to suggest that any measure which takes to care any attention to the needs of the crime victim will result in improved levels of satisfaction with the criminal justice system for those who participate in it.”32 The Victim Personal Statement, was implemented in 2001 following the 1996 Victim’s Charter* and was designed to give victims a more formal opportunity to say how they have been affected by crime (entirely optional)33. It allows victims to freely express how the crime has impacted on them and they can feel reassured that this will be read and that people may understand their situation better. The statement will become part of the case papers for the crime, which means that it will be seen by everybody involved in their case should it come to court - namely the police, the Crown Prosecution Service, the magistrates or judges in court and the defence
7.4 Preventing Intimidation: The problem of intimidation in England and Wales is more acute in high crime areas and for certain types of crime (domestic violence, gun crime). Research has shown in high-crime housing estates that 13% of crimes reported by victims and 9% by other witnesses were followed by intimidation. Six percent of crime experienced by victims and 22% of crime experienced by other witnesses were not reported due to intimidation.34 “It is vital that those who attend court as witnesses, or who are victims with an interest in the case, are protected from intimidation. Separate facilities help to ensure this.”35 Also, victims and witnesses said that they would have liked more help from the police and the CPS as well as to have less waiting time at court.36 A case where a victim of serious assault attended court on three occasions, only to be told on two separate occasions that the case had been adjourned due to listing problems, highlights the problems that victims face as part of the criminal justice system. In this case, the victim felt that the Police had failed to keep him informed of case developments and he was given contradictory information by different Police Officers. In addition, this victim was very frightened and worried about having to see his assailant in court, thus each occasion was a reliving of the experience of the crime and the victim experienced high levels of distress and anxiety. Furthermore, the victim feared retribution and made a suicide attempt between appearances at court. Unsurprisingly, the victim stated that he has absolutely no confidence in the criminal justice system and expected the case to be adjourned on the third occasion.37 Victims say that they simply do not want other people to have to go through what they have been through. Victims are vital keys to capture, conviction and sentencing of criminals, thus victims should be treated with care and sensitivity. They should not be subject to a host of delays, adjournments and other obstacles.
7.5 Non-Government Agencies and Statutory agencies: addressing the support of vulnerable witnesses: Voluntary agencies offer both practical and emotional support for victims of crime. These agencies and their volunteers undertake a lot of the important support and guidance work. Improved support increases the probability of a witness providing their evidence which helps the police capture and arrest a suspect. “Vulnerable witness support projects improve people’s confidence in the criminal justice system. If they have positive experiences of it the first time, they will be more likely to come back a second time. This means that more crimes will be reported and there will be an increase in the numbers of convictions being made as well a decrease in the numbers of cases being adjourned because witnesses have failed to attend”38. Not only must support come from non-government agencies but a collaborative approach must be taken by housing, health and social services in order to address the longer-term solutions in terms of the trauma experienced by victims of crime and by eventual return to work as well as rebuilding other activities and parts of a victim‘s life. 39 The Streetcrime Initiative is an exemplary programme.
7.6 Families of murder and manslaughter victims: There are many complexities in cases of victims of murder and manslaughter. Where someone may be charged in connection with the death, there is usually a delay before the funeral can be held. Often more than one autopsy has to be conducted to provide evidence for both the prosecution and defence. Coroners know the distress caused by not releasing the body for a funeral, and do their best to keep any delay as short as possible for the family’s sake. However, this is not always possible. If a trial takes place, the Crown Court Customer Service officer or the Witness Service should contact families beforehand to arrange for seating in the courtroom so that they do not have to sit near relatives or friends of the defendant.40
The CPS recognise that court cases which involve the death of a family member may cause considerable anguish to relatives and friends. Therefore, the CPS endeavors to make sure that a lawyer of appropriate experience deals with and looks after the family, is prepared to meet relatives of the victim to discuss the basis on which action was taken and ask the court to pay special attention to the listing of these cases.41 Providing information to families in times of such grief and distress is vital.42
8. Witness Satisfaction surveys:
8.1 The Witness Satisfaction surveys and the Vulnerable and Intimidated Witness Satisfaction Survey: In England and Wales, surveys were carried out in 200043 and 200244 to measure the satisfaction levels of witnesses with their treatment by the criminal justice system. Research to evaluate the satisfaction levels and effects of the special measures on vulnerable and intimidated witnesses includes a before and after study aimed at examining the kind of support witnesses received prior to special measures being implemented as well as how the situation has changed since the introduction of special measures45.
8.2 Overall satisfaction levels: In the 2000 Witness Satisfaction survey, 76% (78% in 2002) of witnesses were very or fairly satisfied with their overall treatment within the criminal justice system. Satisfaction with individual agencies was higher, and especially high for the Witness Service, court staff and judges/ magistrates. However, victim satisfaction with the police has gone down from 67% in 1994 to 58% in 2000.46 Initial results from the vulnerable and intimidated witnesses’ survey indicate that vulnerable and intimidated witnesses who gave evidence in court were less satisfied with their treatment than witnesses in general (64% compared to 76% were fairly satisfied). The survey also found that the vast majority of such witnesses thought special measures would be helpful.47
8.3 Waiting time at court: The time spent waiting to give evidence was related to overall satisfaction, with 77% (78% in 2002) of witnesses in the 2000 sweep who waited for less than 4 hours being satisfied, compared to 65% (same in 2002) of those who have to wait for longer than 4 hours. In the 2000 survey, 17% of witnesses had to wait longer than 4 hours before giving evidence.
8.4 Facilities at court: In the 2000 Witness Survey, the majority of witnesses were happy with facilities at court. Of the 15% who were not, 18% suggested the need to separate Prosecution and Defence witnesses. Almost 20% of victims were given details of follow-up support, compared with 9% of Defence witnesses.
8.5 Feelings of being taken for granted and fear of intimidation: The strongest predictors of dissatisfaction among witnesses were, feeling they were taken for granted and feeling intimidated by the process or the court environment. In the 2002 survey, nearly a quarter of witnesses felt that their contribution was taken for granted (23%) and only half (52%) felt fully appreciated. Over a fifth of witnesses felt intimidated by the process of giving evidence and a quarter felt intimidated by an individual. Among child witnesses, 57% felt intimidated. (similar in 2000). Among those who felt intimidated, satisfaction was low (39% in 2000). Overall, even though three-quarters of witnesses were satisfied with their experience, only 67% of witnesses (60% in 2000) said they would be happy to be a witness again because of intimidation or the experience of going to court and being cross-examined. However, eight in ten (80%) said they would be likely to agree to be a witness again if required (2002). This is important not only if these individuals are required to be a witness again but also because their views are likely to impact on those of their friends and family.
8.6 Other factors: Some factors are beyond the control of the criminal justice system and its various agencies. Each individual reacts in a different way to the experience of crime and also to the experience of giving evidence in court. Lurigio (1987) notes that crimes impact differentially on victims and that services for them should be designed to accommodate such differences. The stress of appearing in court can be compounded by the nature of the offence itself, by the personality of the witness and by the characteristics of the witness. In addition, information provision should take account of the effects that a severe psychological trauma may have on people’s cognitive abilities. There may be difficulties for victims who have been seriously traumatised in assimilating and understanding information, in separating out the essential parts of the information and in communicating their concerns about what they receive.48 Victims may also be affected by the horrible reliving of the crime and may become very distressed. They may also feel that their experience in the criminal justice system as well as giving evidence in court in front of strangers may lead to secondary victimisation49. Provision of information has a positive effect on the victims’ sense of self. According to Sanders, “informing victims of prosecution decisions and the reasons for them…does reduce secondary victimisation. 50. In addition, outcomes cannot be controlled i.e. the verdict. In the Witness Satisfaction Survey 2000, witnesses who were unhappy with the verdict were over four times as likely to be dissatisfied with their experience overall than witnesses who were happy with the outcome.
8.7 Treatment and support of witnesses: In the 2002 survey, witnesses who were treated courteously by both sides and who were given the opportunity to say everything they wanted to say were much more likely to be satisfied than other witnesses. There have been improvements in the proportion of witnesses saying they had enough information on what would happen in court, the time involved and what they need to do on arrival. Verbal updates on the progress of the case while waiting at court play a part in making the experience easier. In addition, 81% had contact with the Witness Service. Nearly all witnesses in the 2002 survey who had contact with the Witness Service felt that the Witness Service was able to offer support (95%).
9. Current UK Government Proposals
9.1 Making giving evidence an easier procedure: Current Government proposals look at improving the situation for victims and witnesses when they come into contact with the Criminal Justice System- and reducing unnecessary trips by witnesses to court. By introducing a clearer tariff of sentence discount it is hoped to encourage early pleas. This would speed up case progression. Also, legislation may in the future make it easier for witnesses to give their evidence by making their previous and original written statements more widely admissible at trial and allowing witnesses to refer to them more promptly. Furthermore, the government is exploring the possibility of appropriate alternatives to the formal courtroom for hearing some cases, particularly those involving young and vulnerable defendants, victims and witnesses.
9.2 Legal defence services: Justice For All envisages that all legal defence services would be provided under contract. Advice given by the duty solicitor or the defendant's own solicitor would be free. The availability of legal aid would thus no longer depend on the defendant's establishing at the outset of a case that he satisfies the justice and financial criteria, thus reducing delay and decreasing the exploitation by defence of legal loop-holes.
9.3 Special Measures: A Government White paper proposes to introduce further special measures in court for vulnerable and intimidated witnesses. It also proposes to adopt some of the ideas put forward by the Streetcrime Initiative.51 The White Paper also emphasises the importance of the Witness Service proactively offering pre-trial familiarisation visits to court and being available to provide emotional and practical support on the day of the trial. In addition, the allocation of Police Family Liaison Officers when appropriate is also underlined. The White paper also proposes to legislate to produce a Victim’s Code of Practice, to replace the existing Victim’s Charter (1996), setting out what protection, practical support and information every victim of crime has a right to expect from the criminal justice agencies.52
10. Victims and Witness Strategy 2003 53
10.1 Aims: The Government Victims and Witness Strategy aims to set out how the needs of victims and witnesses should be met not just by the criminal justice agencies but also by other government departments and local authorities. It recognises that supporting victims and witnesses is not only about reporting the crime and the courtroom but about their well being and how the crime impacts upon their lives in many ways.
10.2 Weaknesses in the criminal justice system: The strategy addresses the weaknesses in the system such as the lack of care and respect shown to victims and witnesses in court, the lack of information shared with victims and witnesses, delays in the system and victims and witnesses’ high level of fear of intimidation.
10.3 Specialist services: The Government promises to ensure that specialist services will be provided to vulnerable and intimidated witnesses. It will provide for specific needs of children, victims of rape, domestic violence, racist and other hate crimes and for repeat victims. It will ensure the full implementation of special measures.
10.4 Preventing Secondary Victimisation: The Government lists as a first priority the aim to prevent secondary victimisation. Other priorities include encouraging more victims and witnesses to come forward and offering more options to victims and witnesses, including alternatives to attending court.
10.5 New Code of Practice: The Government reiterates what is outlined in the White Paper, Justice for All, that a new statutory code of practice will replace the non-statutory Victim’s Charter (1996)54.
10.6 Coordination of agencies: The Government in partnership with voluntary organisations will respect victims and provide support and other services within the criminal justice system. Departments which will work in partnership include those which deal with issues of health, housing, social security and education.
CONCLUSION & RECOMMENDATIONS:
This report has focused on the position of victims of crime in England and Wales and has highlighted in particular their sufferings, from the excessive length and delays in the criminal justice system. It has made recommendations as to what measures should be implemented to remedy such suffering (see Annex 1). These measures are recommended as good practice and have achieved a high level of success in their implementation in England and Wales. They each ensure that the criminal trial is fair and that no witness is at an advantage to another due to their age, mental or physical health as well as to their state of fear of intimidation. “A criminal trial is not a game under which the guilty defendant should be provided with a sporting chance- it is a search for the truth”55.
Summary of recommendations
In view of the pace of change and the prioritisation of the area of victims and witnesses in court, a short summary of the most recent recommendations and their benefits in England and Wales follows
Research- conducting a review of why delays happen and in order to establish where the problems lie, what can be changed and how this could benefit victims. All new measures and initiatives should be regularly evaluated and reviewed
Case management- aiming to improve case management from preparation stages to trial- would encourage better and early preparation by all agencies involved.56
Ensure that cases take place when listed- improve confidence in the criminal justice system and reduce amount of time spent by victims and witnesses waiting at court
Dealing with guilty-plea cases promptly: reducing delay in the criminal justice system and saving on wasted time in adjournments
Use of sentence discount- encourage early guilty pleas thus decrease number of adjournments and reduce the number of times a witness must attend court unnecessarily. Early indication of sentence would also improve the availability of information on the status of the case, the trial date and will lead to more fixed hearings.
Pre-trial reviews in contested cases: can save on cost and time by dealing with issues at early administrative hearings.
Legal aid- use lawyers who are at court if legal aid is not organised- saving on cost and time in adjournments
Focus on frequently occurring crimes and repeat offenders - aim to reduce certain crimes thus increase convictions and increase victims confidence in the system
Illustrate that the system uses bail efficiently- improve confidence in the criminal justice system
Ensure that sentencing connects with the community and that sentences are enforced, such as fine payment, community punishments and custody- improve confidence in the criminal justice system and reduce crime by deterrence and by incarceration.
Encouraging inter-agency cooperation and communication- Importance of co-operation between victim services and criminal justice agencies is key to the success of helping victims of crime. Victim Support in England and Wales shares a memorandum of understanding with all agencies within the criminal justice system.57
Introduce measures to facilitate witnesses at court- encourage them to report and to give evidence and to encourage others that it was a beneficial experience
Introduce measures to alleviate stress of victims and witnesses- screens, giving evidence via live television link, removal of wigs and gowns, giving video recorded statements as evidence-in-chief, aids to communication if necessary, alphabet boards, power for the judge to clear the public gallery and a discretionary reporting restrictions for witnesses who are intimidated
Facilities at court should be of a good standard, prosecution witnesses should be kept separate from defence witnesses.
Judges to receive information and guidance so that they are aware of what special measures are in use
Changes in legislation, such as the changes expected shortly in the Criminal Justice Bill which are designed to change the judicial culture and lead to more active judicial case management so reducing time wasting and delays. Legislation could also make it easier in the future for witnesses to give evidence by making their previous and original statements more widely admissible at trial.
Training should be conducted in need and risk analysis by all criminal justice agencies who deal with victim sand witnesses- ensure correct and courteous care of witnesses
The establishment of a Witness Service that looks after the practical and needs of victims and witnesses- providing support to witnesses increases their ability to give best evidence
Ensuring that young witnesses are dealt with correctly and receive age-appropriate information and explanations of the criminal justice procedure.
After-care: Support should be available immediately after the trial by a supportive Witness Service and information on further support should be passed on the witness
Vulnerable and intimidated witnesses should receive appropriate care and support in the criminal justice system to ensure that they give best evidence
Treatment of witnesses: Witnesses should at all times be treated with dignity, courtesy and respect.
Witnesses should have access to information about what will happen in court, about their case progression, given verbal updates and reasons for delays
Intimidated witnesses should be paid special attention by the police as well as by a Witness Service supporter
Families of murder and manslaughter victims should be treated sensitively and with care. Information should be provided to them as far as possible.
The government should introduce a Code of practice.
1 Home Office, (1998) Speaking Up for Justice, London, Home Office, p.1, 1.2.
2 Home Office, (1998) Speaking Up for Justice, London, Home Office, p.1, 1.2.
3 Home Office, (1998) Speaking Up for Justice, London, Home Office.
4 Youth Justice and Criminal Evidence Act 1999, Elizabeth II.
5 Home Office, (1998) Speaking Up for Justice, London, Home Office, p.1, 1.5.
6 Narey M. (1997) Review of the Criminal Justice System, London, Home Office.
7 Narey M. Ibid
8 Striking the Balance; the future of legal aid in England and Wales (1996) Government White Paper.
9 Narey M. (1997) Review of the Criminal Justice System, London, Home Office.
10 Auld R. (2001) Review of the Criminal Courts of England and Wales, London, The Stationery Office.
11 Making a Difference: Reducing Red Tape and Bureaucracy in the Criminal Justice System (2003) Cabinet Office - Regulatory Impact Unit- Public Sector Team, Crown Copyright.
12 Justice Gap Taskforce, (2002) Narrowing the Justice Gap, Framework Document, London, Home Office.
13 Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs and Lord Chancellor, Speech at the Annual Dinner for HM Judges, 9 July 2003
14 Youth Justice and Criminal Evidence Act 1999 Elizabeth II.
15 Kebbell M., Hatton C. , Johnson S. and O’Kelly C. (2001) People with Learning Disabilities as witnesses in court: what questions do lawyers ask? British Journal of Learning Disabilities, Vol 29, no.3.
16 Gudjonsson G. (1995) The Vulnerabilities of Mentally Disordered Witnesses. Medicine, Science and Law, Vol. 35, no 2.
17 Youth Justice and Criminal Evidence Act 1999 Elizabeth II.
18 Home Office, (1998) Speaking Up for Justice, London, Home Office.
19 Action For Justice, ( ) London, Home Office, p Child Witnesses Pre-trial therapy; Practice Guidance, February 2001Recognising capability- a training programme for those in the criminal justice system working with vulnerable or intimidated witnesses, January 2002.Achieving Best Evidence in Criminal proceedings: Guidance on vulnerable or intimidated witnesses including children, January 2002Vulnerable Witnesses: A Police Service Guide, January 2002Adult Pre-trial therapy, January 2002Early Special Measures between police and Crown Prosecution Service and Vulnerable and Intimidated witnesses: Practice Guidance, January 2002.
20 Statement of National Standards of Witness Care in the Criminal Justice System (1996) Trial Issues Group
21 Linda Wilding is a Witness Service coordinator in Hertfordshire
22 Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs and Lord Chancellor, Speech at the Annual Dinner for HM Judges, 9 July 2003
23 Linda Wilding is a Witness Service coordinator in Hertfordshire
24 Justice For All: Responses to the Auld and Halliday Reports (2002) p43, 2.22 Government White Paper.
25 Whitehead E. (2001) Witness Satisfaction; findings from the Witness Satisfaction Survey 2000, Home Office Research Study No 230, London, Home Office.
26 Plotnikoff J. and Woolfson R. Field-test of the Criminal Justice leaflet “Giving a witness statement to the police- what happens next?”, (July 2003, draft form.) p16, 5.3.
27 Sandeep Saprai is a Vulnerable and Intimidated Witness witnesses project key support worker based in Victim Support, Sandwell, England.
28 Justice For All: Responses to the Auld and Halliday Reports (2002) Government White Paper.
29 Sanders A., 2002, “Victim Participation in an Exclusionary Criminal Justice System” in New Visions of Crime Victims, C Hoyle and R Young, 2002, Hart Publishing, Oxford p214
30 Angle H., Malam S. & Carey C. (2003) Witness Satisfaction; Key findings from the Witness Satisfaction Survey 2002, Home Office Research Study No 189, London, Home Office.
31 Williams B., 2003, p10, “Community Justice, Victims and Social Justice” 27 March 2003. Professorial Inaugural Lecture, Faculty of Health and Community Studies, De Montfort University; Leicester.
32 Walklate S. Victim Impact Statements- voice to be heard in the Criminal Justice Process? , in Reparation and Victim-focused Social Work, in B Williams (ed) 2002, Jessica Kinsley, London.
33 Home Office, (1996) Victim’s Charter, London, Home Office
34 Maynard W. (1994) Witness Intimidation: Strategies for Prevention, Police Research Group, Crime Detection and Prevention Series Paper 55, London, Home Office.
35 Angle H., Malam S. & Carey C. (2003) as above
36 Angle H., Malam S. & Carey C. (2003) as above
37 Case details slightly altered and victim’s details withheld due to data protection and confidentiality, anonymity request.
38 Sandeep Saprai is a Vulnerable and Intimidated Witness witnesses project key support worker based in Victim Support, Sandwell, England.
39 For the six months from April to November 2002, robberies dropped by 25%, and street crime as a whole fell by 16%. Decrease in youth crime. Video identification parades were introduced to protect witnesses and victims from intimidation. Courts facilities kept victims and witnesses separate from defendants. The initiative has stressed that magistrates ensure that bail and remand are more strictly dealt with. The use of the anti-social behaviour order has increased, along with tagging, doorstepping and curfew enforcement. The Department of Health has provided access to voluntary treatment programmes that offer drug rehabilitation for offenders under the influence of drugs within 24 hours of release from custody. Department for Education and Skills has set up a scheme to get problem pupils back into mainstream education and away from offending.
40 SAMM (Support After Murder or Manslaughter) offers understanding and support to families and friends, who have been bereaved as a result of murder and manslaughter, through the mutual support of others who have suffered a similar tragedy. www.samm.org.uk
42 Homicide Pack, (2003), London, Home Office.
43 Whitehead, E. (2001) Witness Satisfaction; findings from the Witness Satisfaction Survey 2000, Home Office Research Study No 230 , London, Home Office.
44 See Angle et cl no 17
45 Kitchen S. & Elliott R. (2001) Key Findings from the Vulnerable Witness Survey, Home Office Research Findings No. 147, London, Home Office.
46 Sims L. and Myhill A. (2001) Policing and the Public: Findings from the British Crime Survey, Home Office Research Findings No 136, London, Home Office.
47 Kitchen S. & Elliott R. (2001) Key Findings from the Vulnerable Witness Survey, Home Office Research Findings No. 147, London, Home Office.
48 Lurigio, A.J. “Are all victims alike? The Adverse, Generalised and Differential Impact of Crimes”, 1987, Crime and Delinquency, 33, 452
49 “Secondary victimisation refers to the victimisation which occurs, not as a direct result of the criminal act, but through the response of institutions and individuals to the victim. Secondary victimization through the process of criminal justice may occur because of difficulties in balancing the rights of the victim with the rights of the accused or the offender. More normally, however, it occurs because those responsible for ordering criminal justice processes and procedures do so without taking into account the perspective of the victim.” in “Handbook on Justice for Victims: On the use and application of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power” (1999), United nations Office for Drug Control and Crime Prevention, Centre for International Crime Prevention, published by the Office for Victims of Crime, United States Department of Justice, New York.
50 Sanders A., 2002, “Victim Participation in an Exclusionary Criminal Justice System” in New Visions of Crime Victims, C Hoyle and R Young, 2002, Hart Publishing, Oxford p210
51 Ideas put forward by the Streetcrime initiative include giving special contact numbers to witnesses who feel intimidated, Victim Support volunteers accompanying victims when they are interviewed, giving their statement or attending an identity parade. The Streetcrime Initiative has experienced great success through the coordinated approach by Victim Support, the Witness Service and the Police and has resulted in witnesses in court being supported and protected, in information being provided about the progress of their case and in informing the victim or witness of early guilty pleas as well as sentence discounts and release conditions at a later stage.
52 Victim’s Charter (1996), London, Home Office.
53 Criminal Justice System,(2003) “A New Deal for Victims and Witnesses- National Strategy to deliver improved services”, London, Criminal Justice System.
54 Victim’s Charter (1996), London, Home Office
55 Auld R. (2001) Review of the Criminal Courts of England and Wales, London, The Stationery Office.
56 Other issues which must be organised promptly: flexible listing, listing trials, obtaining medical evidence, arranging interpreters, preventing witness intimidation, preparing high quality case files, producing timely initial prosecution files, full file preparation, including witness availability, encouraging early guilty pleas, ensuring no further delay, understanding reasons for adjournments, speedy preparations of PSR and preparation by all sides.
57 Victim Support UK, The relevance today of Recommendation R (87) 21 on the assistance to victims and prevention of victimisation, (2002) Victim Support, UK.