Victims of Crime (Rights, Entitlements, and Notification of Child Sexual Abuse) Bill [HL] - Second Reading

Part of the debate – in the House of Lords at 1:30 pm on 19th July 2019.

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Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice) 1:30 pm, 19th July 2019

My Lords, I join other noble Lords in congratulating my noble friend Lady Brinton on introducing the Bill, which contains a range of careful and well-thought-out measures. In opening this debate, she introduced it in a comprehensive and persuasive way. It makes an overwhelming case for introducing statutory rights for victims. My noble friend has been an assiduous campaigner for victims’ rights over a number of years and has spoken extensively in this House on the topic, as well as working tirelessly for the APPG.

The Bill is as welcome as it is important, because it seeks to give teeth to the Government’s victims strategy, which was published in September 2018. It is of course true that gone in part are the bad old days when criminal proceedings were all about the police, the prosecution and the prosecution’s lawyers, the defendant and the defendant’s lawyers, and when the principle governing the criminal justice system held that in criminal cases, the state had taken over the case from the victim to run it on behalf of the Crown. Technically, that is right, and that principle is welcome so far as it goes. However, it had the unwelcome, unhelpful and unsympathetic corollary that the victim’s role was seen merely as one of witness: yes, loser, or complainant certainly, but with no independent right to consideration or care from the criminal justice system.

With public and political pressure, that culture may have changed to a considerable degree, but we have a long way to go. The Bill would play an overwhelmingly important part in that change of culture by moving simply from cultural change to a network of legal rights to recognise and protect the position of victims of crime. The distinction between legal rights and cultural change is an important one. Legal rights lead behaviour, and in that they should be recognised as controlling cultural change rather than merely following it.

The Bill goes much further than the victims strategy in a number of areas, not merely in introducing legal rights. The noble Baroness, Lady Newlove, when Victims Commissioner, welcomed the victims strategy but called then for victims to be given legal rights—as she put it,

“for people to recognize what needs to be done”.

My noble friend developed the case in her opening speech that these rights should be enshrined in law. It is pertinent that the United Kingdom opted in to the European Union victims’ rights directive.

The Government may take the view that the victims strategy is enough to comply with that directive, but I suggest that that is at best dubious and invite the Minister, in responding to the debate, to consider how far that directive has been complied with. I should be highly surprised if, before and irrespective of the fact that we are threatened with leaving the EU, the Government did not take the view that complying with the EU victims directive is the right thing to do.

My noble friend talked about the support she had received from the right reverend Primates the Archbishops of Canterbury and York and looked forward to the contribution that we have now heard from the right reverend Prelate the Bishop of Rochester. No one in this House could have disagreed with a word he said. His summary was important, when he said that everything in the Bill was obviously good practice and ought to be there as a matter of law. I hope that the Government found that speech and that sentiment persuasive.

Clause 3 deals with changes to the victims’ code of practice and implementations in law. The kernel of the Bill is the overriding right of victims to be treated with dignity and respect, which is enshrined in Clause 3(3)(b). Yes, of course it is obvious, but I suggest that it needs stating as a matter of law. It goes to the heart not just of a change of culture but what needs to be enshrined in law. Clause 3 also includes the right to information, including a right for victims to have information relating to relevant crimes and a right to support from relevant agencies. In the dry words of draft legislation, it is easy to forget the personal needs of victims, who are often vulnerable by virtue of who they are and their position in society, but also because of the very fact that they are victims of crime; when they are involved in legal proceedings, those vulnerabilities are at their worst.

It should be absolutely clear that all victims ought to have notice of court proceedings and relevant hearings, but there was a time—and in some cases, it continues—when victims were the very last to know what was happening to the perpetrators of the crimes against them. I suggest that it is not just court hearings: parole hearings are extremely important and there are of course changes in the Parole Board’s proceedings as a result of the Worboys case. In many cases appeals also happen without victims being told about the hearing, its date, its listing or the outcome. That is simply wrong.

The Bill includes protections for children and vulnerable adult witnesses when giving evidence. Of course, the principle and good practice is that vulnerable witnesses should be able to give evidence from remote locations or from behind the screen, but gone must be the days— which I well remember from years of criminal practice—when victims who are witnesses were cowed, frankly, from giving their evidence in a straightforward and fearless manner because they were in the presence of the perpetrators of the crimes against them and subjected to not violent but intensive cross-examination that they found completely intimidating.

There are rights in the Bill to help and advice, to access for victims to a trained person to support them with information and advice, and to the ability to liaise with relevant agencies that may be familiar to a trained person, but which may seem remote and difficult to access for victims. There is the right to attend and be heard at pre-court hearings, and particularly to trained help from intermediaries for young victims. The Bill also includes a right to compensation that goes well beyond criminal injuries compensation—which does not cover losses arising out of victims’ involvement in the court process, which can be extensive—and the right to legal advice where necessary and where ordered by a judge.

In opening the debate, my noble friend mentioned the right not to have personal data unnecessarily or unsafely disclosed. She made the simple but obvious point that the publication of victims’ addresses can do untold emotional harm and often threaten—or make them feel threatened by—physical harm. The case for ground rules hearings in cases where witnesses might include young people or those suffering from incapacity, fear or distress is also important.

The Bill contains the valuable suggestion that the parliamentary commissioner—the ombudsman—should have a role in enforcement. Extending the ombudsman’s role to victim protection would be extremely helpful. The ombudsman has been a successful innovation over the decades; it has given the public confidence that appropriate cases will give rise to a full investigation and a report to Parliament. I suggest that that would be a welcome protection for victims.

Area victims’ plans are also important. It is said that the policing body must consider the needs of victims, propose a plan for meeting those needs, consult the public, publish its plan and submit area plans to the Commissioner for Victims and Witnesses annually. That will do much to keep the question of victims’ rights before the public and to ensure that they are protected properly. The Victims’ Commissioner is then given the duty to oversee those area plans.

The Bill includes a right to review decisions not to prosecute. In this context, I would mention that the position is fluid. These victims’ rights will need consideration, and having a network of rights will improve that.

In some cases, the double jeopardy rule needs reconsidering. Yesterday, my noble friend and I saw the solicitor acting for six victims of the football coach, Bob Higgins. Those cases led to acquittals before more recent, compelling evidence became available, which led to Mr Higgins’s conviction by Winchester Crown Court for the sexual abuse of 24 boys in his charge as a football coach at both Peterborough and Southampton Football Clubs over a 25-year period. In the cases that were acquitted, new prosecutions were ruled out because Mr Higgins was entitled to the benefit of the double jeopardy rule for the reason that, although the boys concerned were under the age of 18 at the time of the abuse, they were over 13 and so exceptions to the double jeopardy rule did not apply. The Bill would not cover that precisely, but my point is this: if we build in a change not just in culture but in the law, victims’ rights will move up the agenda and receive the attention that they deserve, and the kind of injustice that leads to the double jeopardy rule denying prosecutions in cases where there ought to be such will be mitigated. It is all very well to say that Higgins got an adequate sentence in respect of the offences against the 24 boys, but it is wrong to deny that a real injustice was created for the six boys whose cases were acquitted.

I welcome proposals for training for people involved in cases of sexual violence and domestic violence, on which my noble friend Lady Hamwee concentrated. I am happy to see that judges and barristers were included in those proposals because such professionals are often caught up in outdated ideas and modes of thought that they regret when they are trained to identify them; they are willing to undertake training.

I come finally to the question of the duty to notify the police of possible victims of child abuse, on which my noble friend Lady Benjamin concentrated. A consultation in 2016 put out proposals for a mandatory duty to report, but in the light of the responses the Government’s position was to refuse to implement it. It was argued that the case had not been made and the suggestion was that reporting could create unnecessary burdens, divert attention from the most serious cases, hamper professional judgment and potentially jeopardise the vital relationships between social workers and vulnerable families in their care. That was apparently based on a numerical majority of consultation responses against mandatory reporting. But I do not accept, without further argument, that that is the case; I accept the case for mandatory reporting. I invite the Government to explain what considerations there were, both logical and intellectual, that persuaded them to reject their earlier position. My noble friend Lady Benjamin, with her record of campaigning for the protection of children and against their abuse, made a powerful case on that point.

In summary, I support the case for statutory rights. I suggest, as did the right reverend Prelate, that the case is unanswerable. The overriding question that I have for the Minister is why, in those circumstances, are the Government ducking it?