CCPE-BU(2017)1

Strasbourg, 14 February 2017

                               

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS (CCPE)

In your answers, please do not send extracts of your legislation but describe the situation in brief and concise manner, including briefly what is happening in practice.

Introduction

The Opinion deals, in general, with the rights of victims, witnesses and vulnerable persons within the framework of criminal procedure, and, in particular, with the role of prosecutors in protecting these rights.

The first section deals with the definition of victims, witnesses and vulnerable persons in the way in which it exists in different member states of the Council of Europe. The second section deals with their rights. The third section concerns the role of prosecutors in protecting these rights. This section, due to the mandate of the CCPE, is the key section of the Opinion.

The Bureau and the Secretariat of the CCPE would like to strongly thank you for your cooperation and contributions.

1. Definitions

1.1      Is there in your country a definition of a victim or a witness of crime? If yes, is it established in the law or other legal instruments?

A: There is a statutory code of rights for victims known as the Code of Practice for Victims of Crime[1].  Within the Code a victim is defined as follows:

“• a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence;

• a close relative (see glossary)[2] of a person whose death was directly caused by a criminal offence”.

I am unaware of a parallel definition of a witness. It is not included in the Witness Charter.  The Police use the definition in Black’s Law, which defines a witness as ‘one who sees, knows or vouches for something. One who gives testimony under oath or affirmation, in person, by oral or written deposition or by affidavit’.

1.2      Are there in your country special regimes for victims of certain types of crimes, for example, domestic violence, sexual abuse, trafficking in human beings? If yes, can you list them? 

I am not clear what is meant by special regimes but we have in place specific measures for victims of the most serious crime; persistently targeted victims; and vulnerable or intimidated victims as set out in the Victims’ Code .   There is a large amount of guidance to police and prosecutors on how to deal with cases in all of these categories.  There is also specific support for victims of sexual abuse from police and others such as local authority employed Independent Sexual Violence Advisers (ISVAs).  Similarly for victims of domestic abuse, there is particular support from the police and Independent Domestic Violence Advisers (IDVAs). 

For Human Trafficking, The Convention on Action against Trafficking in Human beings was implemented on 1 April 2009. This introduced a number of provisions to improve the ability to identify victims, refer them to appropriate support and bring more cases to justice. The provisions include mechanisms for early identification of victims, national referral schemes, and the granting of recovery and reflection periods and renewable residence permits to victims.

1.3      Is there in your country a definition of vulnerable persons, either in general sense, or particularly within the framework of criminal procedure? If yes, is it established in the law or other legal instruments?

We are unaware of a general definition of a vulnerable person in law.  However, in the Youth Justice and Criminal Evidence Act 1999 which sets out support for vulnerable and intimidated witnesses giving evidence in court, the following definition of eligibility is used.  This definition is what is meant when we refer to vulnerable witnesses:

Witnesses eligible for assistance on grounds of age or incapacity.E+W

(1)For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section—

(a)if under the age of 18 at the time of the hearing; or

(b)if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within subsection (2).

(2)The circumstances falling within this subsection are—

(a)that the witness—

(i)suffers from mental disorder within the meaning of the Mental Health Act 1983, or

(ii)otherwise has a significant impairment of intelligence and social functioning;

(b)that the witness has a physical disability or is suffering from a physical disorder.

(3)In subsection (1)(a) “the time of the hearing”, in relation to a witness, means the time when it falls to the court to make a determination for the purposes of section 19(2) in relation to the witness.

(4)In determining whether a witness falls within subsection (1)(b) the court must consider any views expressed by the witness.

There is cross-Government work going on that may produce a wider definition of vulnerability but this is not yet in place.

2. The rights of victims, witnesses and vulnerable persons

2.1      Are there in your country specific rights of victims, witnesses and vulnerable persons within the framework of criminal procedure, in addition to human rights in general?

Entitlements rather than rights are outlined in the Code of Practice for Victims of Crime and the Witness Charter (attached). 

For witnesses within the criminal justice system, there is a non-statutory charter that sets out what they can expect in terms of service from criminal justice agencies.  (This is also attached). This includes the rights of vulnerable and intimidated witnesses as defined under 1.3 above

2.2      If yes, are they established in the law or other legal instruments?

The Code is issued by the Secretary of State for Justice under section 32 of the Domestic Violence, Crime and Victims Act 2004. It implements relevant provisions of the EU Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime; Directive 2011/92/EU combating the sexual abuse and sexual exploitation of children; and Directive 2011/36/EU preventing and combating the trafficking of human beings.

2.3      Please enumerate briefly these specific rights (e.g. the rights to protection, to be treated fairly and with dignity, to be notified, to be present and to be heard at court proceedings, to seek restitution, to the respect of privacy, to make a complaint about infringement or denial of their rights).

Please see the attached Code and Charter.  The early chapters give summaries of the high level entitlements and expectations.

2.4      How are victims, witnesses and vulnerable persons informed of their rights? Are there any formal arrangements or informal mechanisms, free access to relevant information and databases etc.?

There is a range of ways in which victims and witnesses are informed of these entitlements.  A Government website (gov.uk) gives access to both the Victims’ Code and Witness Charter plus a much broader range of information about support services, including for those victims of crime who choose not to report.  When they contact the police and give a statement, the police should make them aware of the Victims’ Code and / or Witness Charter as well as referring them to other support services.

The joint police / prosecution Witness Care Units in each police Area should also direct them towards the relevant documents throughout the life of the case and when the case ends.

2.5      What kind of penalties and sanctions are established for violation of these rights?

If a victim believes that they have not been afforded the entitlements that are outlined in the Code they can complain to the agency which has failed and ask for apology or reparation.  If they are still not satisfied they can refer the matter to the Parliamentary and Health Service Ombudsman, through their MP.  Similar entitlements are afforded to witnesses under the Charter.  In both cases the Ombudsman can recommend the agency acknowledges their mistakes, apologises and/or makes a consolatory payment if he / she believes it to be appropriate.

2.6      Are there in your country specific rights of vulnerable persons due to their age (children, elderly people) or disability (physical or mental), either as victims or as witnesses?

All child witnesses under the age of 18 are included in the definition of vulnerable as shown at 1.3 above.  This entitles them to apply for special measures to support their giving of evidence as outlined in pages 4 and 5 of the attached Witness Charter.  This also applies to people with physical or mental impairments.  However older people are not included in the definition and therefore are not automatically accorded the rights. 

2.7      When a decision in criminal matters is likely to affect the rights or the situation of a vulnerable person, is it brought to the attention of other bodies dealing with the rights of that person (e.g. a measure prohibiting contact with his wife for a husband in the event of domestic violence brought to the attention of the court responsible for ruling on the custody of children)?

The UK has an adversarial system.  In the circumstances you mention, it would be open to the lawyers representing the woman in the civil proceedings to bring to the attention of the court a criminal conviction for violence.  In a decision concerning the custody of children an independent service working on behalf of the court conducts assesses both parents suitability.  Part of that function involves checks on criminal convictions which would be referenced in the report and read by the deciding Judge.   

      

2.8      Can such vulnerable persons bear testimony alone or only following authorisation by their legal representatives, and in this latter case, in what conditions?

Yes a vulnerable person can give evidence on their own but, through the special measures, they may be offered support to enable them do so effectively (e.g. through the use of an intermediary).

2.9      Is the refusal to bear testimony admissible, for instance as regards children or mentally disabled persons? In what conditions?

Refusal to give evidence can be taken into consideration in the decision by a Jury as to culpability in certain circumstances.  That applies in Youth Courts as it does in Adult courts however it is subject to considerable safeguards.  Depending on the extent of the mental disability the person would not be placed before a criminal court.  If he is but is deemed unfit to plead then there would be a fact finding hearing at which he would not expected to give evidence.  Vulnerable people who are not unfit could be asked questions through an intermediary.  Even in normal cases, the court has to be satisfied that the Defendant is aware of the consequences of a failure to testify before it can be held against him.          

2.10    Who proceeds to the evaluation of vulnerable persons and how the risk is assessed? Can the vulnerable person play a role in assessing such a risk? Which protective measures may be adopted and by whom?

The witness’s vulnerable will be assessed by a trained professional who makes a report to the Court.  The Court will then take the appropriate measure and discuss with the advocates for either The most obvious examples of protective measures are, an intermediary who interprets the questions for the witness, pre-recorded evidence which is played in court.  There may also be a facility in due course for pre-recorded cross examination.   

2.11    Are there, in your country, any special procedures that allow testimony to be filmed, recorded and/or given from behind a screen? If so, in what circumstances can this occur?

Yes.  Evidence in chief can be filmed for victims of rape and serious sexual assault and played back to the court.  They are then cross-examined live, either in the court (which can be behind a screen) or over a video link (to prevent them having to be in the same room as the defendant).

Pre-recorded cross-examination is now possible for child witnesses in some cases (usually sexual offences) and some other vulnerable witnesses.

The opportunity to give video evidence or evidence from behind screens applies to all vulnerable or intimidated witnesses, subject to the approval of the court.

2.12    How is the prevention of repeated victimisation ensured?

If there is any concern expressed about, or evidence of the risk of, repeat victimisation CPS can ask for bail conditions at the first hearing of the case to prevent contact between the defendant and victim.  Then police will carry out a risk assessment for the victim and put in place a proportionate response to ensure they are protected effectively.

2.13    Are the rights of victims, witnesses and vulnerable persons foreseen only for nationals or also for foreigners? Under which circumstances?

They apply to all affected by crime, regardless of their nationality, if the crime happens in England and Wales.

3. Role of prosecutors in protecting the rights of victims, witnesses and vulnerable persons

3.1      How are the rights of victims, witnesses and vulnerable persons within the framework of criminal procedure enforced and guaranteed? What is the role of prosecutors in this matter?

See para 2.5 above.  In addition, each agency (including the prosecution) has specific responsibilities under the Code and Charter and they are held to account by their own organisational management for their provision.  The national Criminal Justice Board and the Victims’ Commissioner both oversee provision and make reports and recommendations for improvement.

3.2      Is this role of prosecutors established in the law or other legal instruments? Is this role established in the rules of ethics and professional conduct of prosecutors?

Please see paras 1.1 and 1.3 above re legal instruments.  Prosecutors have specific duties under both the Code and the Charter.  There is no separate prosecutor code of conduct but the CPS Values say that prosecutors will treat all with respect. 

3.3      How is this role fulfilled in practice? How do prosecutors cooperate with other organs of state in fulfilling this role, and do prosecutors have supervisory or monitoring functions?

All partner agencies are covered by the Victims’ Code and Witness Charter and we work together to comply with their provisions.  Specifically, we work closely with the police in Witness Care Units to provide timely, useful information and support.  Also, we work with the courts to ensure that victims and witnesses and vulnerable people are provided with the relevant, effective support on the day they give evidence at court.

3.4      Can victims, witnesses and vulnerable persons apply directly to prosecutors for protection of their rights?

For some aspects.  In terms of a right of appeal against a decision by the prosecutor not to proceed with, or continue a case, a victim can apply directly to CPS for this to happen.

For other matters, prosecutors and others in the CPS will ensure that the relevant support and help is given throughout the case but not necessarily at the request of the victim.  Needs assessment are carried out by the joint police / CPS Witness Care Units to ensure the relevant support is put in place.

3.5      Can prosecutors, at their own initiative, start legal action for protection of the rights of victims, witnesses and vulnerable persons?

Applications can be made to secure special measures to enable vulnerable witnesses to give evidence via mechanisms described elsewhere in this questionnaire response.  On a finding of guilt, Prosecutors can apply for restraining orders to protect victims of crime.  However Prosecutors cannot start independent legal action to protect victims / witnesses.   

Concerning assistance to victims, witnesses and vulnerable persons, do the prosecutors interact with other state bodies, private entities or NGOs?

Yes.  We work with the police, the Ministry of Justice, HM Courts Service and commissioned service providers to do so.

3.6      Do the prosecutors benefit from specific training on the protection of the rights of victims, witnesses and vulnerable persons? Does such training also involve prosecutorial staff and law enforcement agencies? Do the prosecutors play a role in carrying out such training?

Yes.  All prosecutors are trained on the Victims’ Code and Witness Charter as part of their induction into the organisation.  All have access to guidance on a wide range of victim and witness related issues and how they should be dealt with.  In addition when a new approach is adopted or legislation changes we can, and have, built specific training courses to ensure that the staff affected are able to carry out the new duties effectively.  Recent examples include training of all CPS Victim Liaison Unit staff on communicating with victims; training on how to operate the Victims’ Right to Review and training on the new arrangements for Speaking to Witnesses at Court.

3.7      Any other relevant point you wish to raise.

No thanks.