3 Prosecutors and victims
At the heart of the criminal justice
system
79. In 2002 the Government's White Paper Justice
for All set out the concept of rebalancing the criminal justice
system to place victims at its heart:
"The people of this country want a criminal
justice system that works in the interests of justice. They rightly
expect that the victims of crime should be at the heart of the
system. This White Paper aims to rebalance the system in favour
of victims, witnesses and communities".[166]
The prosecutor has been a key part of the Government
drive to put victims at the heart of the criminal justice system.
The Prosecutors' Pledge was launched in 2006, setting out the
expectations that a victim can have of the CPS (and other prosecutors)
including keeping the victim informed of decisions that are made
and seeking victims' views on particular decisions. On launching
the pledge then Attorney General, Rt Hon Lord Goldsmith QC, said:
"The prosecutor plays a vital role in achieving
this objective [of putting the victim at the heart of the criminal
justice system] by communicating with and supporting victims of
crime. They are also champions of victims' rights and protect
their interests".[167]
However, Victim Support did not feel that the aim
to put the victim at the heart of the system was being realised,
saying that the Government has set out its stall "as putting
victims and witnesses at the heart of the criminal justice system
when actually that is very hard to prove to anybody who then goes
through the system".[168]
80. Several of our witnesses suggested that one
of the reasons why this objective might not be realised was that
it set an unrealistic expectation of what the role of the prosecutor
could be with regard to the victim. Nicola Padfield, University
of Cambridge, said: "The Government's determination to 'rebalance'
the system in favour of victims can exaggerate the role of the
victim in the prosecution process".[169]
Robin White noted that there had to be distance between the victim
and the prosecutor: "One form of prosecutor independence
in the public interest is independence from the victim".[170]
He went on to distinguish between the role of the prosecutor with
regard to the victim, and with regard to the criminal justice
system:
"prosecution by a public prosecutor is not necessarily
in the interests of the victim. It may or may not be, but the
point of the criminal justice system is to identify who did the
wrong thing and make that individual subject to a penalty".[171]
Sir Ken Macdonald QC noted in his final lecture as
Director of Public Prosecutions that "it will never be possible,
in adversarial proceedings governed appropriately by Article 6,
for the interests of victims to overcome those of defendants".[172]
81. Victim Support feared that victims had been
given unrealistic expectations that the prosecution would be on
their side. Gillian Guy, Chief Executive of Victim Support, told
us: "I suspect that they [victims and witnesses] believe
that prosecutors are there as their barrister, as their advocate".[173]
She described victims and witnesses asking the Victim Support
service:
" 'When am I going to meet my barrister? Why
have I not got the same access to my barrister as the defendant
has?', and, 'Why do I have to deal with so many different agencies,
whereas the defendant only has one advocate that they have to
channel their process through?'"[174]
However, the CPS "does not act for victims or
their families as solicitors do for their clients".[175]
Victim Support questioned whether such misperceptions might arise
because victims are given false expectations. Gillian Guy told
us
"the expectations from victims and witnesses
tend to be what we give them as expectations, and we spend the
rest of our time perhaps trying to live up or down to them".[176]
She called for a commitment to a more realistic set
of expectations:
"I think the answer is that we really need to
define what those expectations realistically can be within a criminal
justice system and then seriously live up to them".[177]
82. Rather than being the champion of victims'
rights, the evidence we heard suggested that the prosecutor should
be seen as more of a neutral figure, whose role ultimately is
to provide for justice. The Attorney General said:
"I think that allowing the prosecutor to be
the gatekeeper, to be the guardian of the public interest …
is really important, but that means representing all the public
interest, which is the victims, the witnesses and the defendant,
and that fairness is something which I think is central to the
prosecutorial role".[178]
The DPP also emphasised the role of the CPS in contributing
to a fair criminal justice process: "The existence of a strong,
effective and publicly respected prosecuting service is an absolute
requirement of a fair criminal justice system based on the rule
of law".[179]
Rather than acting on behalf of victims, he noted: "the client
of the CPS is the public".[180]
Fairness was also one of the driving forces behind creating the
CPS. Sir Cyril Philips, in the report of the Royal Commission
on Criminal Procedure, said of the separation of functions of
prosecution and investigation leading to the creation of the CPS
that the "division of responsibility and function of itself
provides a safeguard to the liberty and rights of any person who
becomes involved with it".[181]
83. Telling a victim that their
views are central to the criminal justice system, or that the
prosecutor is their champion, is a damaging misrepresentation
of reality. Expectations have been raised that will inevitably
be disappointed. Furthermore, the criminal justice system is set
up to represent the public rather than individuals, and there
are good reasons for this. The CPS's role as independent arbiter
of decisions about prosecution is critical. Explaining this role
clearly to victims such that their expectations are managed realistically,
rather than raised then disappointed, is vital.
Victims' experiences
84. Sir Ken Macdonald QC noted that:
"The Crown Prosecution Service and prosecutors
find themselves at the heart of this debate. It is possible to
find a balance which improves the respect with which victims and
witnesses are treated, while at the same time upholding defendant
rights and fair trial principles".[182]
Whilst therefore not raising false expectations that
the prosecutor will act as the victim's advocate, we should be
striving to achieve a better service to victims. Victim Support
have previously told us that what victims want most of all—apart
from not having been a victim in the first place—is that
the same thing will not happen again.[183]
In other words, the role of the criminal justice system in preventing
offending and reducing re-offending is of major importance to
victims, and the responsibility of the CPS to act in support that
aim should be a clear part of the explanation of the role of the
CPS.
85. It was emphasised to us that victims needed
to be treated as people, and helped to understand what was happening
in the criminal justice process. Mind described to us how people
might feel that they were "passengers in a system which was
being driven by other people".[184]
Victim Support similarly had concerns that organisations were
"process driven rather than people driven".[185]
Mind felt that there was a disconnection between the process and
the individual:
"Often the individual agencies are trying to
get the process working in the most effective way, but there seems
to be a lot of problems and barriers on the way to helping these
things happen most effectively to the individual, and it is the
individuals, whether they are the witnesses or the victims, who
are quite often carried along".[186]
Victim Support talked about victims having the information
to really understand what was happening:
"there is a great deal of power that resides
in the CPS, which is seen by victims and witnesses, and yet it
is not fully explained to them, actions are not fully explained
to them".[187]
The Health and Safety Executive (HSE) acknowledged
this as a key part of their work as a prosecutor with victims:
"The important thing for us to do is to manage the expectations
of victims and to be able to explain".[188]
However it saw challenges in achieving this within the system
for criminal justice:
"it is difficult for [bereaved families] to
understand why the case has to go from one agency to another to
the coroner and then back to court. All that we can do is to try
and explain that".[189]
86. The CPS highlighted the different policies
and work undertaken by the CPS to improve the service for victims.
These include the Prosecutors' Pledge, setting out the support
that victims can expect from the CPS; the Direct Communications
with Victims scheme, introduced in September 2002—and now
incorporated into the Code of Practice for Victims of Crime—setting
out how the CPS will communicate directly with victims; the 'No
Witness, No Justice' care programme, through which Witness Care
Units have been established across England and Wales to ensure
that victims and witnesses have information and support necessary
to give their best evidence; and Victim Focus, an enhanced service
for bereaved relatives.[190]
87. The Attorney General told us that the treatment
of victims is:
"light years away from where it used to be and
it is much better. They [victims] always say there is more for
us to do, but the important thing is they are saying it is much
better than it was".[191]
The Director of Public Prosecutions acknowledged
the role of CPS staff in providing a better service for victims
and witnesses: "Undoubtedly, they are working really hard
on this issue. They are really proud of what they do".[192]
88. Victim Support was also complimentary about
key policies providing for victims. The Chief Executive of Victim
Support described having a meeting with the Director of Public
Prosecutions soon after joining Victim Support, being presented
with the Prosecutors' Pledge and thinking "fantastic".[193]
The problem, however, seemed to be in what happened next, in the
need for "words on paper [to be] given life".[194]
We are not convinced that the plethora of different policy statements
are followed through in practice, or that the Prosecutors' Pledge
has a central place in the minds of prosecutors on a day-to-day
basis. There is a considerable amount of well-intentioned over-complexity
in the system and we urge the Attorney General to undertake radical
steps to simplify the systems of pledges, guidance and regulation
so that expectations and commitments are set out for everyone
in the CPS and for courts, victims and the general public in the
same clear and simple terms.
89. The Prosecutors' Pledge was discussed frequently
in our evidence. The Director of Public Prosecutions felt that
"it is really taken seriously and is recognised to be central".[195]
Victim Support were more sceptical about whether "people
would understand it and recognise it".[196]
They were however positive about the future:
"I think [the Prosecutors' Pledge] is something
that can work, but, first of all, the leadership has to be about,
'We will make this work', and then the support has to be about,
'we will give people the wherewithal to make it work.'"[197]
90. One of the key issues that needs to be resolved
is inconsistency. Gillian Guy said:
"I believe there is commitment on the part of
the CPS to change and we are seeing that happen, and what we have
been saying, I think reasonably consistently ourselves, is that
it is inconsistency that is the problem".[198]
Mind similarly described the CPS's service to witnesses
as "patchy".[199]
The Chief Inspector of the CPS was also concerned that good initiatives
might be introduced but were then not supported, leading to a
decline in performance:
"Victims and witnesses are a good example of
that because in the 2005 overall performance assessments we gave
some quite positive findings to the CPS. We had to report in 2007
that there was actually a marked decline".[200]
91. PCS questioned whether the CPS's ability
to provide a service to victims and witnesses was hampered by
the resources available, saying:
"The capacity for CPS to cater for victims and
witness needs at court is limited by resources, for instance caseworkers
in London and a number of other CPS Areas regularly have more
than two or three court rooms to cover". [201]
Mind and Victim Support argued that CPS staff were
not necessarily being given the tools to provide an effective
service to victims, because they were not provided with, or required
to attend, relevant training.[202]
The Director of Public Prosecutions told us that "We have
training for all of our prosecutors on working with victims and
witnesses".[203]
Victim Support told us that training modules around working with
victims had only been taken up by approximately 20% of prosecutors.[204]
Gillian Guy noted that, with regard to this training, "we
are keeping an eye on what mandatory actually means".[205]
92. A second point raised in relation to training
was what it actually covered. Again, Victim Support wanted training
that looked at victims as people rather than a part in a process:
"there are issues around … the training
that is given in order for the legal profession … to actually
be able to relate to people rather than process and be clear about
what it really feels like ... what the impact is of the justice
system on individuals".[206]
They suggested that "it would help enormously
if organisations like ours were involved in preparing the training
for prosecutors and getting that understanding into the training
base".[207] There
were also specific concerns about the content of training: "Mind
believes the CPS does not provide sufficient training about mental
health for prosecutors to make consistently good decisions concerning
mental health and credibility".[208]
Mind said that decisions about whether or not to prosecute should
not be based on "assumptions" about a witness but that
criminal justice professionals should consider cases individually
on the basis of a better understanding of mental health and the
implications for witness credibility.[209]
93. The concept of involving victims in the evaluation
of what was happening was raised several times in evidence. Mind
suggested that victims' views could be part of a qualitative mechanism
to assess CPS performance such that it incorporated: "reflection
which is led by people who have been victims in the past".[210]
Gillian Guy, Chief Executive of Victim Support, said: "I
am … a fan of actually talking to victims and witnesses,
actually confronting what their experience has been and making
changes as a result of that".[211]
The Inspectorate of the CPS stated that they used feedback from
victims and witnesses in their inspections. "When our inspectors
go to court they would speak to the victims and witnesses if they
were able to with the help of the Witness Service after they had
given their evidence". [212]
94. Victims want to be treated
as people, which often does not happen in a criminal justice system
that is driven by process. We are pleased that the CPS has risen
to this challenge by developing good policies for engaging with
victims and witnesses. Delivering these consistently on the ground
continues to require a major effort.
COMPLAINTS
95. One way to incorporate feedback from people
who have experienced the work of the CPS is through complaints.
This was an area that our witnesses felt needed urgent attention.
Nicola Padfield, University of Cambridge, stated:
"One area that is quite difficult to explore
and to learn about from different bodies' websites is complaints
against the CPS. Who deals with complaints against the CPS? Should
that be for an inspectorate or should it be for a separate complaints
body?"[213]
Both Mind and Victim Support felt there was a need
for a "straightforward" system to make complaints within
the criminal justice system.[214]
96. On 5 March 2009 HMCPSI published a review
of CPS complaints handling. This report found considerably variety
in CPS handling of complaints:
"Although more than half were excellent or good
[in terms of quality of response and thoroughness of investigation],
the balance did not meet the required standard and too many were
unduly defensive".[215]
The report also criticised accessibility for people
wanting to make a complaint as, for example, "The complaints
leaflet does not define what a complaint is, is not readily available
in the places where, according to the guidance, it ought to be".[216]
We discussed with the Chief Inspector of the CPS whether the complaints
system should have an external element. He commented: "There
is precedent for it in relation to the Public Prosecution Service
in Northern Ireland where they do have an independent complaints
officer who is outside the Service".[217]
The Chief Inspector did not, however, feel it should be part of
his role:
"There is already an existing power for the
Attorney General to ask us to look into matters relating to the
Service which are of particular public concern. It would probably
detract from our ability to inspect if we became routinely involved
in reviewing complaints handling. I do not think I would want
that role other than in exceptional circumstances".[218]
97. Even before the HMCPSI report into CPS complaint
handling was published the CPS told us it was an area that they
were aware of and one on which they wanted to take action. Peter
Lewis, Chief Executive, said: "We acknowledge that we have
got to do more on complaints. Our complaints system at the moment
is too old, too defensive, it is not open and transparent enough".[219]
98. The lack of a consistent,
effective and readily understood complaints handling system has
been a serious weakness of the CPS. We welcome the CPS's recognition
of the need, and commitment, to take action to ensure that the
system is more open and transparent. We believe that it should
provide a valuable mechanism for the CPS to learn more about the
service that its various clients and stakeholders would like provided,
as well as giving a proper response to complainants.
SPECIAL MEASURES
99. Stakeholder organisations such as Mind and
Victim Support raised serious concerns that special measures are
not being appropriately used; these concerns were acknowledged
by the CPS Inspectorate. Special measures are intended to assist
vulnerable or intimidated witnesses to give the best quality evidence
they are capable of in criminal proceedings. Such measures may
include the ability to give live evidence through a televised
link thus without having to be physically present in the court
room, for wigs and gowns to be removed, and for witnesses to be
able to give evidence through an intermediary.[220]
Victim Support told us that "notification and applications
[for special measures] are made too late, when the courts have
no choice, according to their discretion, but to refuse those
applications".[221]
However, the bigger problem is that people are not being identified
as suitable for special measures in the first place. Victim Support
told us:
"people are not being identified for those special
measures at all sometimes, and we have discovered ourselves as
the witness service 18,000 people on the day are coming to court
who should have been identified for special measures: so they
have been failed on two occasions coming through the system and
they are then in a court process without that assistance".[222]
Sally Hobbs, Deputy Chief Inspector, HMCPSI, commented:
"It is fair to say that there are shortcomings in both [police
and CPS] in terms of identifying vulnerable and intimidated victims
and witnesses at the various stages of contact".[223]
100. Paul Farmer, Chief Executive of Mind, was
able to describe the consequences of not utilising special measures
effectively, combined with what he described as the CPS's "institutional
reluctance around being prepared to believe people with mental
health problems as credible witnesses ".[224]
He noted:
"the lack of the CPS's ability to be able to
pursue a case—effectively having cold feet because they
felt that the key victim was not a reliable witness but not actually
putting in place appropriate support for that witness which could
have made the whole process much more effective—has led
the CPS to be found to be acting unlawfully and in contravention
of the Human Rights Act".[225]
101. When the Director of Public Prosecutions
subsequently came to give evidence to us he expressed concern
about these issues raised by previous witnesses. He drew attention
to the work that is being done:
"In 2008, 30,449 applications were made for
special measures, of which 28,858 were granted. That gives you
a sense that there is some really significant work being done
here on behalf of victims and witnesses".[226]
He continued: "We are actively considering some
research to see if we can capture better some data about possible
missed cases".[227]
102. Whilst we were pleased that the concerns
of earlier witnesses had already been taken on board, we were
alarmed by Mind's statement: "In discussions with the CPS,
Mind has been assured that primary responsibility for identifying
vulnerable witnesses lies with the police and not prosecutors".[228]
Victim Support made a general comment: "What has happened
so far is that the separation has enabled people to pass the buck".[229]
This may suggest a tendency for agencies to pass the responsibility
for a particular problem to a different agency, rather than dealing
with it themselves. Sally Hobbs, Deputy Chief Inspector at HMCPSI,
highlighted that both the police and the CPS had a role to play:
"There are certainly some issues in terms of
police … They are perhaps not sufficiently aware of what
special measures really meant for vulnerable and intimidated victims
and witnesses … For the prosecution, it is about being more
alert at the charging stage … The alertness is there in terms
of the evidential issues but it is actually what is needed for
those people as well that is missing".[230]
103. Special measures are a
crucial part of the criminal justice system which should enable
a witness to give the best evidence they are capable of giving.
We are concerned by the evidence that individuals are not being
identified as being suitable for special measures, or that delivery
failures mean they do not receive them once their need has been
identified. We are also concerned at the suggestion that the CPS
may be reluctant to recognise that people with mental health problems
can be credible witnesses at all. The CPS is not the only agency
with a role to play in identifying those who need special measures
but it is a key agency and should be alert at the charging stage
to what people need. The CPS could also work with the police to
ensure that they are identifying individuals for special measures
effectively. We look forward to hearing more about the CPS's work
to improve its identification of those cases where the need for
special measures was not recognised.
166 Justice for All, July 2002, Cm 5563, foreword Back
167
Statement by the Attorney General, The Prosecutors' Pledge, July
2006 Back
168
Q 122 Back
169
Ev 106 Back
170
Q 15 Back
171
Q 15 Back
172
Sir Ken Macdonald QC, 'Coming out of the shadows' CPS lecture,
20 October 2008 Back
173
Q 122 Back
174
Q 122 Back
175
Ev 78 [CPS] Back
176
Q 122 Back
177
Q 122 Back
178
Q 381 Back
179
Keir Starmer QC, 'A prosecution service for the 21st
century', speech to the London Metropolitan University, 9 January
2009 Back
180
Q 335 Back
181
Sir Cyril Philips, Report of the Royal Commission on Criminal
Procedure, January 1981, Cmnd. 8092-I, para 10.5 Back
182
Ken Macdonald QC, 'Balancing the Rights of Victims and Defendants:
prosecutors and due process', a speech to the British Institute
of Human Rights, 18 January 2008 Back
183
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Theft and Burglary (non-dwelling), 3 June
2008, HC (2007-8) 649-i, Q 15 Back
184
Q 126 Back
185
Q 122 Back
186
Q 126 Back
187
Q 122 Back
188
Q 251 Back
189
Q 252 Back
190
Ev 78-9 Back
191
Q 383 Back
192
Q 343 Back
193
Q 128 Back
194
Q 128 Back
195
Q 343 Back
196
Q 123 Back
197
Q 130 Back
198
Q 145 Back
199
Q 141 Back
200
Q 261 Back
201
Ev 115 Back
202
E.g. Q 141 Back
203
Q 340 Back
204
Q 130 Back
205
Q 130 Back
206
Q 123 Back
207
Q 144 Back
208
Ev 95 Back
209
Ev 95 Back
210
Q 145 Back
211
Q 145 Back
212
Q 262 Back
213
Q 13 Back
214
Qq 137, 138 Back
215
HMCPSI, When things go wrong: a thematic review of complaints
handling by the Crown Prosecution Service, March 2009, Chief
Inspector's Foreword Back
216
HMCPSI, When things go wrong: a thematic review of complaints
handling by the Crown Prosecution Service, March 2009, para
2.3 Back
217
Q 296 Back
218
Q 296 Back
219
Q 332 Back
220
Youth Justice and Criminal Evidence Act 1999 Back
221
Q 123 Back
222
Q 123 Back
223
Q 263 Back
224
Q 142 Back
225
Q 139 Back
226
Q 339 Back
227
Q 339 Back
228
Ev 97 Back
229
Q 139 Back
230
Q 264 Back
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