Second Report - Pre-legislative scrutiny of the draft Victims Bill

The Committee welcomes the opportunity to scrutinise the draft Victims Bill and supports the Government’s ambition to improve victims’ awareness of their rights under the Victims’ Code. The Code is an important aspect of the Bill. It is disappointing that neither the draft of the proposed new Code nor the draft regulations setting out the key entitlements of that Code have been published alongside the draft Bill. This has limited our ability to scrutinise the Government’s proposals to support victims (Paragraph 5) Clause 1, defining victims of crime

In relation to the inclusion of witnesses in the definition of victim, no reference is made to the impact, if any, that the crime has had upon the witness. Some witnesses are certainly traumatised by the nature of the crimes they have been exposed to— incidents of violence are an obvious example—and there is logic in treating them as victims. Others may be unaffected. Further refinement is required, otherwise such a wide definition of witness may actually make the application of Code rights more difficult in practice. The Government also needs to set out what effect the inclusion of witnesses will have on the application of rights under the Code in general.

As currently drafted, a victim of small-scale fraud is considered a victim of crime for the purposes of the Bill but a parent whose child has been murdered is not. This cannot be right. We recommend that the definition of victim in clause 1 of the Bill be expanded to include a close relative of a person whose death was directly caused by a criminal offence. As set out in the current Code, such a definition should refer to the spouse, the partner, the relatives in direct line, the siblings and the dependants of the victim and that other family members, including guardians and carers, may be considered close relatives at the discretion of the service provider.

The existing Code makes no reference to rights for secondary victims of crime, specifically rape-conceived persons. Clause 2(4) sets out that the Code may make provision for those not defined as ‘victims’ in clause 1. This provides scope to extend Code entitlements to children born of rape but as drafted lacks the necessary assurances that this will happen and, being unsighted on any draft of an updated Code, we cannot be reassured that provisions in the Code will be extended to that group. We recommend that both the Bill and an updated Code make specific reference to the inclusion of rights under the Code for children born of rape.

We recommend that victims of non-criminal anti-social behaviour who meet the threshold for a ‘Community Trigger’ should be recognised as victims for the purposes of the Bill and be entitled to rights under the revised Victims’ Code. We think this is in line with the Government’s aim of achieving a culture change in the attitude towards victims among criminal justice agencies and recognises that anti- social behaviour can have as much of an impact on those affected by it as criminal conduct. (Paragraph 17) 52 Pre-legislative scrutiny of the draft Victims Bill

Many victims of crime do not pursue a criminal justice response, particularly those most at risk of being victims. We generally welcome the draft Bill’s open definition of victim, subject to our comments in paragraph 10, but it needs to go further. All those who have suffered harm must be able, and have the confidence, to contact services such as the police, and to access their rights as victims. The lack of a firewall between the police and Immigration Enforcement denies safety to victims and witnesses and may allow perpetrators to commit further offences.

We call for an immediate end to the sharing of victims’ and witnesses’ data between the police and the Home Office for immigration enforcement purposes and the introduction of a complete firewall for those groups. We recommend that the draft Bill includes a provision stating that victims’ and witnesses’ data cannot be shared by the police with Immigration Enforcement and that entitlements in the Code will not be restricted on the basis of immigration status. (Paragraph 22) Clauses 2 to 4, the Code of Practice for Victims of Crime

As drafted, the Victims Bill does not appear to enshrine the Victims Code in law any more than is already provided for. The four overarching principles in the draft Bill are so broad and permissive that it is not clear that they serve any significant legal purpose. The current Code appears to comply with these principles, and it is hard to envisage any future Code not complying with them as a matter of course.

The Government should publish its proposed draft of an updated Victims’ Code and the draft regulations setting out the key entitlements of the Code at the same time as the Victims Bill is presented to Parliament to provide clarity for Members of both Houses as to what the Bill seeks to do. The regulations setting out victims’ key entitlements under the Code should be subject to the affirmative resolution procedure to allow parliamentary scrutiny of its provisions.

We are not convinced that the overarching principles, as drafted, are strong enough to drive the necessary cultural change in the treatment of victims in the criminal justice system. The approach taken retains the onus on the victim to claim rights they are often unaware of rather than requiring the relevant agencies to deliver them. As set out, this approach falls short of what is required.

We recommend that clause 2 includes an additional subsection following subsection 1 which places an obligation on the relevant statutory services, including but not limited to the police, to make victims aware of the Victims Code. We further recommend that the principles currently set out in subsection 2 should be rephrased to set out what victims must have rather than should have—as provided for in the original consultation document. We suggest the following: i) criminal justice agencies must provide victims with the information they need throughout the entirety of their case, from reporting through to post- conviction in a language or format that they can understand; this should include information on restorative justice where appropriate; Pre-legislative scrutiny of the draft Victims Bill 53 ii) victims must be able to access services which support them (including, where appropriate, specialist services); iii) victims must have the opportunity to have their voices heard in the criminal justice process; iv) victims must be able to challenge decisions that directly impact them.

Clause 3 obliges the Secretary of State to consult the Attorney General on preparing a draft of the Code and on any amendment to it. That obligation should be extended to include the Home Secretary, Victims’ Commissioner, Domestic Abuse Commissioner and Children’s Commissioner for all amendments.

As drafted, the Bill fails to adequately address the issue of agencies’ non-compliance with the Code—we are concerned by this given that it is one of the principal reasons for the Bill. We have already recommended strengthening the principles in clause 2; that recommendation, combined with an increase to the powers of the Victims’ Commissioner, which we discuss elsewhere in this Report, may go some way to improving levels of compliance with the Code. However, we recommend that the Government gives further consideration to this crucial aspect of the Bill before presenting it to Parliament.

Community Impact Statements are not new and the Government itself acknowledges that little is known about their use. We recommend that the Government undertakes further research on how Community Impact Statements have been used and provides guidance to support any further promotion of their use.

We support the Government’s proposal to give a victim of a mentally disordered offender the right to submit a Victim Personal Statement to a Mental Health Tribunal. We recognise that there are particular sensitivities in the Mental Health Tribunal which differ from those in the prison and parole system, not least that a person who has been sectioned is deemed to lack capacity for their actions. In introducing this entitlement the Government must be mindful of the potential for retraumatisation, and the creation of unrealistic expectations if victims believe that their views might influence the tribunal’s decision. The Government should ensure that adequate counselling support is in place before rolling out this measure.

To aid close relatives of victims of mentally disordered offenders to cope and recover from their trauma, the Government should consider whether further information could be provided on the nature of the offender’s illness and how it impacted upon the motives for their actions. Without any such context and understanding, the recovery of the victim or their close relative is far harder.

There is room for improvement to the Right to Review schemes and the communication of them to victims. The details of the schemes in the Code need to be clearer and the CPS and police need to improve their performance in informing victims of the schemes’ existence and how they operate, including a victim’s right to make representations under those schemes. Witnesses to our inquiry made a number 54 Pre-legislative scrutiny of the draft Victims Bill of recommendations on how the Right to Review schemes could be improved. We have set these out in this Report and recommend the Government give each of them due consideration.

The Government’s Root and Branch Review of the Parole System merits more consideration than we have had opportunity to give to it during our scrutiny of the draft Victims Bill. It is a policy area we are likely to return to in the future. In the meantime, we wish to highlight the concerns raised in this inquiry regarding the potential for victim participation in the parole process to lead to retraumatisation of the victim without effective support from trained counsellors. Such support needs to be in place before the policy is rolled out and will require additional funding from the Government.

Attending court can be a daunting experience for a victim, with potential to be confusing and retraumatising. We agree in principle with the Government’s ambition for the CPS in high harm cases to support victims through that process and to keep them informed. However, any further demands on the CPS should be matched with the additional resources required. The best way to support victims is to have an efficient and effective criminal justice system. Any steps to divert already constrained CPS resources from their core prosecutorial task may have an adverse effect on the timely delivery of justice and, ultimately, provide a worse experience for victims.

A right to information about restorative justice and how to access local restorative justice services is already an entitlement in the Code but it is clear that it is not being delivered consistently. Our predecessor Committee’s 2016 report on restorative justice recommended that the Victims’ Law should include a provision for victims to have a legislative right to access restorative justice services. That is also our view and we recommend that that right be included in the Bill as we have set out in paragraph 34.

The decision whether to accede to a disclosure request of counselling notes and third-party material should not rest solely on the shoulders of victims, many of whom are vulnerable and traumatised. There is a case for providing independent legal advice for vulnerable victims facing disclosure requests and the Government should consider this further alongside its consultation on third party material. We welcome the work the Government is doing to ensure that disclosure requests are proportionate.

The primary purpose of counselling is therapeutic not investigative. The law should still allow for disclosure of those notes where their probative value merits it; but the reasonable grounds test must be respected and enforced effectively if victim confidence in the criminal justice system is to be sustained.

We recommend that the Code includes a right for victims whose cases are heard in the Crown Court to be offered a free transcript of the judge’s sentencing remarks, in a format that they can access, and that bereaved families should be offered a free transcript of the Coroner’s findings after an inquest. (Paragraph 83) Pre-legislative scrutiny of the draft Victims Bill 55 Clause 5, review of compliance with the Victims’ Code

A lack of data has been a key barrier to the effective monitoring of the implementation of the Code, particularly with respect to minority groups. Meaningful data collected and published regularly can help amplify victims voices and hold underperforming agencies to account. We welcome the duty the Bill places on the criminal justice bodies to collect data on their compliance with the Code at a local level and to share that data with their PCC. We have set out some suggestions on what data should be collected.

We recommend that clause 5 includes a duty for the Victims’ Commissioner and local victims’ groups to be consulted on the data required to hold agencies to account on their performance in delivering the Code. That data should be standardised to allow comparison across police areas. The duty should also require the PCCs to publish that data, in a form that can be disaggregated by crime type and protected characteristic, and to share that data with the Victims’ Commissioner and, where necessary, the inspectorates. There will need to be safeguards within any data collection agreements to ensure that the duty does not compromise victims and survivors’ confidentiality or jeopardise their ability to consent to access services and support.

We support the Government’s ambition to improve transparency in the delivery of the Code. However, transparency and roundtable discussions will only go so far in improving performance without any enforcement mechanism. The Government should set out in the guidance provided for in clause 5(6) the escalation routes available to PCCs where there are concerns about an agency’s compliance with the Code and the quality of outcomes for victims. We do not believe that PCCs should be able to direct the work of agencies independent of them, but they should be able to raise concerns with bodies that do have this power. We therefore recommend that the guidance includes the right for PCCs to make representations to and share data with the inspectorates and the Victims’ Commissioner. (Paragraph 95) Clauses 6 to 8, collaboration in the provision of support services

We welcome the duty to collaborate. This duty, however, should also include providers of children’s services to ensure the needs of child victims are met and to help facilitate the flow of necessary information between agencies. It is unclear whether the duty to collaborate is intended to support the provision of victim support services to those who do not make contact with or have withdrawn from the criminal justice system. We call on the Government to ensure that those people are included.

We recommend that clause 8(3) also includes reference to section 3 of the Domestic Abuse Act 2021, namely that children can be victims of domestic abuse in their own right. Doing so will provide assurance that commissioners of support services must also consider the specific needs of child victims of domestic abuse and the adequacy of the provision of referral pathways. We further recommend that the statutory guidance advises the authorities to undertake a needs assessment for child victims in their community and addresses the difficulties child victims of abuse experience in accessing pre-trial therapeutic support. (Paragraph 102) 56 Pre-legislative scrutiny of the draft Victims Bill

The duties on bodies responsible for commissioning victim support services are complex and they are supported by multiple funding streams. The Government should use the Victims Bill and the guidance provided under the duty to collaborate to draw these different duties and funding models together, to ensure that they work cohesively on the ground. If this legislation simply adds new duties to an already crowded landscape, then it will be incredibly challenging for the relevant agencies to deliver on all pieces of legislation effectively.

PCC, local authority and health board areas are rarely coterminous. This will necessarily add complexity to collaboration and the development of a single strategy for the delivery of victim support services for each police area. In setting guidance to the relevant authorities on their duty to collaborate, the Government must include clear guidance around governance and accountability.

We are concerned that the duty to collaborate does not go far enough to ensure that vital, community-based support services are available to victims of domestic and sexual abuse. The duty must be strengthened to require the agencies described to collaborate and commission community-based services. That duty should be accompanied by an appropriate, multi-year funding package. Without the necessary funding in place the Bill risks raising victims’ awareness of their rights only to leave them unable to access them due to the relevant services already working at full capacity.

We recognise the challenges for local commissioners in identifying and funding small or highly specialist services, and for those services to access commissioned funding. We recommend that the Government put in place a national multi-year ring-fenced fund to ensure specialist support services are supported and for that funding to be available in the simpler grant form. This fund should complement a responsibility on PCCs, health and local authorities to commission ‘by and for’ services, including through co-commissioning at a regional level where necessary.

Commissioning of support services for victims works best when commissioners have an accurate understanding of need. As drafted, the Bill requires the authorities to consider any needs assessment they may have carried out in preparing the strategy. This needs to be strengthened to require the authorities to undertake the needs assessments identified in clause 6(4), and to do so before a strategy is developed. In making those assessments commissioners should be mindful of the potential for under-reporting in areas where there may be a lack of specialist representation, for example with respect to male victims of abuse, or LGBT+ and other victims with protected characteristics who may require support services.

The statutory guidance to be provided by the Government should include advice on addressing the potential for under-representation in the needs assessment. It should also include signposting to specialist support for those groups that may be available elsewhere or at a regional or national level. (Paragraph 115) Pre-legislative scrutiny of the draft Victims Bill 57 Clauses 9 to 10, IDVAs and ISVAs

ISVAs and IDVAs have a valuable role in supporting vulnerable victims through the criminal justice process. Defining their role in statute and the amendment to the Criminal Procedure Rules will raise their profile further and should go some way to addressing concerns of inconsistent access to the court room. We recommend that the Government monitors IDVA and ISVA access to the court. The accompanying guidance should set out clearly that those who meet the criteria of being an ISVA or IDVA have a right to support complainants at hearings and that the presumption should be for access to the court to be granted.

We recommend that the Bill includes the entire definition of a domestic abuse victim as it appears in the Domestic Abuse Act 2021. We further recommend that the Bill also defines Independent Sexual Violence Advisors and Independent Domestic Violence Advisors who support children—so called CHIDVAs and CHISVAs.

Clause 9(3) states that the guidance may include provision on the role, functions and appropriate training and qualifications of an ISVA and IDVA. We find no reason why it should not be required to do so. If a role is to be recognised in statute it is not unreasonable to suggest the criteria defining that role be also set out, not least if people performing that function are to have consequent rights such as being allowed to support complainants in court. The Ministry of Justice will also need to clarify how any guidance produced with respect to ISVAs corresponds to existing guidance published by the Home Office.

Guidance on appropriate training and qualifications for the independent advisors must be co-designed with the expert services already in the sector who have established and grown those roles and should be drafted in such a way that does not discredit the specialism of other advocacy models or those specialising in particular areas, where training and provision may differ to reflect the diverse needs of their clients. We further recommend that the guidance stipulates that ISVAs and IDVAs must be independent from the police and that access to their services is not restricted to people engaged in the criminal justice system.

The Victims Bill will likely put additional strain on already stretched services as victims of domestic or sexual abuse become more aware of their rights. Advocacy services already face unmanageable referral levels and caseloads. Additional funding is required to enable services to meet demand and allow the Victims Bill to live up to its ambitions. (Paragraph 129) Clause 11, the Victims’ Commissioner

We support the then Minister’s ambition for the role of the Victims’ Commissioner to have ‘even greater national prominence.’ We recommend that the Victims’ Commissioner retains a duty to oversee the operation of the Victims’ Code at a national level. Clause 11(2)(a) should not be included in the Bill.

We welcome the Government’s proposal for those subject to recommendations in the Victims’ Commissioner’s Annual Report to be required to reply to 58 Pre-legislative scrutiny of the draft Victims Bill those recommendations and to do so within 56 days. We recommend that the requirement is extended to include the Victim’s Commissioner’s thematic reports to help support their recommendations being taken forward. We note that such a requirement already exists with respect to reports produced by the Domestic Abuse Commissioner.

We recommend that the Victims Bill places a duty on HM Inspectorate of Constabulary and Fire and Rescue Services, HM Inspectorate of Probation, HM Inspectorate of Prisons and HM Crown Prosecution Service Inspectorate to consult the Victims’ Commissioner annually on how the victims’ experiences should be incorporated into their ongoing programme of inspections. (Paragraph 136) Clause 12, joint inspections relating to victims

We agree with the Government’s intention to increase the inspectorates’ focus on victims. The inspectorates should be required to consult the Victims’ Commissioner and consider representations and data from PCCs as part of the development of their work programme.

We support the Government’s intention to improve monitoring mechanisms of agencies’ performance with respect to victims and note the Government’s plans to work with the inspectorates to develop a ratings system. A crucial part of this work will be ensuring that there are adequate levers in place to ensure that those agencies that are found to be failing victims take the necessary steps to improve their performance. One of those levers should be reinspection. We look forward to the further development of these proposals (Paragraph 145) Clause 13, the PHSO

There is a broad parliamentary and stakeholder approval for the removal of the need for a victim of crime to raise a complaint via an MP before it can be escalated to the Parliamentary and Health Service Ombudsman. This move is long overdue. We support the proposal and also call on the Government to consider taking forward the Ombudsman’s request to allow victims to make a complaint in formats other than in writing. Alongside the removal of the MP filter the Government and Ombudsman service should take steps to increase the visibility of the Ombudsman service to victims of crime. (Paragraph 148) Other matters

Measures to support victims set out in the Victims Bill and Code should not be diminished by reforms to the Human Rights Act. The safeguards provided by that Act are also important given the weaknesses in the Victims Bill with respect to the ability for individuals to enforce their rights under the Victims’ Code.

The Government should consider the concerns we raise in the annex to this Report relating to technical matters in the drafting of the draft Bill before presenting the Bill to Parliament. (Paragraph 153) Pre-legislative scrutiny of the draft Victims Bill 59

A principal purpose of the draft Bill is to improve victims’ experience of the criminal justice system but it is not clear that the Bill as drafted will do enough to achieve the change required. It has also been published against a backdrop of significant court backlogs, with victims of crime too often waiting years for their cases to come to court, and criminal legal aid advocates turning away from the profession. The Government is taking steps in tackling those deep-rooted problems but until they are resolved victims will continue to suffer harm for too long. (Paragraph 154) 60 Pre-legislative scrutiny of the draft Victims Bill stniop gnitfarD :xennA noisulcnoc eettC esnopser JoM noitseuQ txeT esualC snosrep hcihw yfiralc ot devorpmi eb dluohs gnidroW .detoN dedeen sdrow yna erA ton seod noitces sihT“ )9(5 laitnetop diova ot seitud eht fo tnuocca ekat ot deen ohW ?”ekat“ erofeb erusolcsid a eriuqer .noisufnoc ekat“ dluohs tahw ro fi noitamrofni fo eht ”tnuocca otni dluow erusolcsid eht ?seitud tnaveler atad eht enevartnoc noitalsigel noitcetorp gninimreted ni tub( erusolcsid a rehtehw ekat ,os od dluow eht tnuocca otni siht yb desopmi seitud ”.)noitces snrecnoc siht taht yfiralc ot devorpmi eb dluohs gnidroW )d()5(01 noitces ni desu taht stcefler gnidrow sihT tahw raelcnu si tI eht fo retsiniM a…“ )c()11(5 .”snosirp“ fo noitinfied eht 1102 tcA ytilibisnopseR laicoS dna mrofeR eciloP tnaveler si ”gninaem“ gnisicrexe ni ,nworC seod“ nosirp a taht mrfinoc ot dednetni si hcihw gninaem eht ti si :ereh noitaler ni snoitcnuf ”.nosirp ecrof ria ro yratilim ,lavan a edulcni ton gnitimil – ”nosirp“ fo eht nihtiw( snosirp ot -non ot gninaem eht nosirP eht fo gninaem rednu snosirp yratilim ”…)2591 tcA 2591 AP eht fo )1(35s fo gninaem eht ro – ?”snoitcnuf“ laitnetop diova ot devorpmi eb dluohs gnidroW .detoN no tnemmoc eeS rehtehw gninimreted ni“ )01(6 .noisufnoc .)9(5 sesualc ,os od dluow erusolcsid a ”…tnuocca otni ekat .detcerroc eb dluohs rorre gnitfarD .detoN siht :tniop