Examination of Witnesses (Question Numbers
122-139)
GILLIAN GUY
AND PAUL
FARMER
3 FEBRUARY 2009
Chairman: Ms Guy from Victim Support
and Mr Farmer from Mind, thank you very much for joining us this
afternoon. We are particularly keen to hear from you. Dr Palmer,
is going to begin.
Q122 Dr Palmer: Thank you for coming.
One of the things that we all run into as constituency MPs is
the expectations of victims of the criminal justice system. How
realistic do you both feel that they actually are?
Gillian Guy: I think that 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 depending on what their experience
actually is. A lot of that is about having set out our 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 because it is process driven rather
than people driven, and that is what we spend at Victim Support
a lot of our time trying to change the balance on in terms of
how those people perceive and experience what justice is for them.
I think, insofar as the Crown Prosecution Service is concerned,
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, and so they
are immediately up against a lowering of expectation or a dashing
of those expectations as they come through. Obviously, the CPS
are part of a much wider system. There are about 13 agencies,
all with different protocols, as we have just heard, different
procedures, cultures and expectations themselves of what the system
will be doing, and it is a very difficult place for victims and
witness to really understand what they are supposed to be getting.
I suspect that they believe that prosecutors are there as their
barrister, as their advocate, and that is not really properly
addressed on their behalf and is not properly explained. Many
times we get witnesses saying to us, "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?"
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.
Paul Farmer: I support much of
what has been said. I would go a little further to suggest that
in many cases people with an experience of mental health problems
have quite low levels of expectation because of their constant
experience of trying to seek access to justice only to be turned
away. A lot of the work that we did in our Another Assault
report, which I know is referred to in our submission to you,
suggested that significant numbers of people experience victimisation
and harassment but are fearful of contacting the criminal justice
system in that broadest context because they feel they will not
be believed, they feel that their evidence will not be taken seriously,
and I think for those people who experience mental health problems,
the access to support and help from the criminal justice system
which they and we all see as fundamental part of our citizenship
is often denied to them. Although I know post bags are often maybe
full with people who feel as though they have some right to pursue
cases which, on the balance of probability, may not be the appropriate
ones for a system to be pursuing, I think we would argue that
in far more cases people are not even making contact with the
system because of their poor experiences.
Q123 Dr Palmer: We received a copy
of the Prosecutors' Pledge. Does the victim see this pledge
at any stage? Is it given to them at the beginning? Do they see
it at all?
Gillian Guy: I think it is potentially
one of those issues that is not consistently applied. I think
a key theme running through what I want to say on behalf of victims
and witnesses would be about inconsistency and about the differences
of approach and a lot of dependency on action of individuals and
personalities as opposed to being able to understand the system
in full. As far as the pledge is concerned, I cannot say how many
people see it. I could speculate as to how many people would understand
it and recognise it. I think that some of the issue is putting
words on paper which do not match how it actually feels to be
a victim and a witness. One of the things that we clearly feel
very strongly about are special measures in court where, quite
clearly, 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. We also find that notification
and applications are made too late, when the courts have no choice,
according to their discretion, but to refuse those applications,
and we also find that people have no idea what it is they might
expect in good time to prepare for the special measures that they
might receive in court. That is but one example of where, following
on from that theme, expectations are not realised. I also think
there are issues around the pledge of the training that is given
in order for the legal profession, from which we have just heard,
to actually be able to relate to people rather than process and
be clear about what it really feels like—and I use that
word again—what the impact is of the justice system on individuals,
and I also think that there is a cultural issue in those organisations
(and I have mentioned the 13 different agencies involved) in actually
seeing that victims and witnesses are the most important element
of that system.
Paul Farmer: In the context of
mental health, I think special measures are extremely rarely used
with people who experience mental distress or mental health problems,
and the understanding of the Prosecutors' Pledge, in most
cases, will be quite limited by victims themselves. I think this
is particularly relevant in the context of the way in which evidence
of previous psychiatric history is utilised, where the pledge
is very clear that prosecutors have a responsibility to protect
victims from unwarranted attacks on their character, and yet in
many cases we have found, from work that we did, that previous
psychiatric history was being used inappropriately to discredit
or undermine the effectiveness of the evidence from a witness.
Q124 Dr Palmer: Among the pledges
are "where practical seek a victim's view when considering
the acceptability of a plea". As I understand the system,
correct me if I am wrong, the decision is sometimes taken after
only informal contact with the CPS. The police may decide simply
to give a caution. I have a constituency case where a child was
allegedly beaten up and the police officer decided that the adult
had been mildly provoked and just issued a caution. The alleged
victim was not consulted there. Do you feel there is a gap there?
Should this pledge apply to the police as well, or is it sufficiently
covered by them consulting the CPS?
Gillian Guy: I believe there are
two issues there. One is whether it actually happens under the
pledge with the CPS (and again I use the terms "consistency"
and "individuals" and "individual approaches")
because in some instances prosecutors will go to great lengths
to have that consultation and we know that victims then feel quite
valued in the process, they understand what has been going on
and they appreciate that. We also know in other instances they
are not consulted and sometimes not even told, and that includes
the family as well as the victims themselves. As far as extending
it to the police, I think if we have standards of behaviour for
the system throughout for victims and witnesses they should apply
to all agencies in it.
Q125 Dr Palmer: Another set of victims
of the system are people who are wrongly accused. We do get cases
where people appear to have waited an inordinate amount of time,
like a year, to be told that they will not be prosecuted and sometimes—and
this is very anecdotal—there will be a question, where an
accusation seems to be fairly frivolous, that it actually takes
longer to dismiss because the CPS feel: "This is a minor
case; I will get to it sometime." Do you feel that it would
be helpful if the CPS had a screening process to rapidly dismiss
obviously frivolous allegations?
Paul Farmer: It is not something
we would have a view on, I do not think.
Gillian Guy: I think there would
be a long argument as to what amounts to frivolous accusations,
which I probably should not get into here. I think that anything
that helps the system to act more effectively and quicker, so
that people understand what is happening, would be good and, of
course, the interests I would be looking at there would be of
the witnesses waiting in the wings, who will be clearly stressed
by whether they have to come forward and be witnesses or not,
and the sooner they know that and know whether they have been
deemed to be frivolous, perhaps with an explanation as to outcome,
the better.
Q126 Julie Morgan: I notice that
with certain victims of sexual abuse, for example, or domestic
abuse, if a charge is withdrawn this can be extremely devastating.
Do you feel that the CPS usually deal with that situation as well
as they can?
Paul Farmer: I think this comes
back to the question about the interface between the various arms
of the criminal justice system. 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. A number of people
in our survey talked about their experiences, feeling as though
they were passengers in a system which was being driven by other
people rather than the system being there for them themselves.
I think the question of pace is an important one for ensuring
that people are treated with dignity and respect as well as being
treated appropriately, justly and fairly.
Q127 Julie Morgan: Ms Guy, do you
want to say anything on the more specific point that Ms Morgan
raised about where, for example, a rape or sexual abuse case cannot
not proceed and the way the victim is dealt with?
Gillian Guy: I think the word
used was "usually", and I think this is a consistent
theme of mine really, which is that there is not necessarily a
usual situation. There are people who understand the ramifications
of that and will go, as I said, to great lengths to give the explanation,
and it is a very difficult situation to deal with for a victim
who may then suffer further victimisation as a result of having
pursued a case; so it does require as well joint working across
agencies to pick up that issue and be able to communicate, not
just with the victim, but with those other agencies as well to
be able to help. I would say that from the previous evidence our
experience is that co-location of agencies actually helps in that
kind of working just to make sure that that communication happens
and also that the people perspective is put into the system at
every possible opportunity.
Q128 Alun Michael: Could I stick
with this business of the victim's experience. I wonder if we
could sharpen up on what is needed. You have both made reference
in the questions to the Prosecutors' Pledge, and I would like
to be clear what the problem is. Are you saying that there are
issues with the pledge and what it covers, or are you saying the
aspirations are right but it is not what drives the way that prosecutors
operate?
Gillian Guy: I believe that the
aspirations are right. Indeed, when you read the aspirations they
are very difficult to disagree with. I will not slip into anecdote,
but I remember first joining Victim Support, having a meeting
with the DPP and being presented with the Prosecutors' Pledge,
and I thought, "Fantastic; so it is going to be a good experience
then." My experience after that—
Q129 Alun Michael: You have recovered
since!
Gillian Guy: Yes, I have learnt
a bit since then. I think really it is about words on paper being
given life; the people expected to give that life actually being
given the tools to do it; so that it is no good saying to a prosecutor,
"You were that type of prosecutor yesterday and today you
are going to be like this", and we see a difference when
there are new people coming into the CPS, for example, as opposed
to people who may have been there for a very long time who are
expected to change their very thinking process. I think that is
very difficult.
Q130 Alun Michael: Sure, but I am
trying to get it how we use this. Is this something that is not
sufficiently built into the targets and the performance expectations
within the department and, therefore, is ineffective, is it something
that you think is hung on the wall in the average prosecutor's
office or carried around in the wallet as something that is valued
and important, or is it just something that is produced when you
meet a new victim's concern?
Gillian Guy: Probably all of those,
and that is the consistency point. I think it 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."
I recently spoke at a CPS conference, and what struck me was that
there were modules of training for prosecutors who would be dealing
directly with victims. I would argue that you do not necessarily
have to deal directly to understand what impact you are having,
but let us just take that. Those modules have been taken up by
something 20% of prosecutors. They have been made more mandatory
than they were in 2001, and, obviously, we are keeping an eye
on what mandatory actually means and what impact that has, but
the question there has to be after that is: "How does that
change the behaviour of prosecutors and how are we actually monitoring
that" This does not stray into all of those other areas,
but whenever we have something that is written either as legislation
or as guidance, we do not tend to follow up and evaluate the impact
that that is having, and I think that the leadership needs to
take that evaluation into account.
Q131 Alun Michael: So your criticism
is not of the Charter as such, it is that it needs to be seen
as important and it needs to be driven within the service?
Gillian Guy: My criticism is:
I sat at a meeting with a prosecutor who said, "I have got
to talk to a witness and tell them they will not be credible.
I cannot do that. It is not the job of a prosecutor."
Q132 Alun Michael: As far as complaints
are concerned, what is your experience when people have not met
the expectations that a victim from the Prosecutors' Pledge
might reasonably expect?
Gillian Guy: I think complaint
is a whole other issue in the criminal justice system.
Q133 Alun Michael: I am coming on
to it, so I am asking for the relationship between the pledge
and the complaint.
Gillian Guy: I would wish anyone
luck who wanted to see their complaint through, and I would like
to see that there was a channel that enabled people to understand
where the complaint was going to be handled, that it was not their
problem to understand who they had to send the complaint to in
the system and that once the complaint had come through they would
be assured of a change in procedure so it would not happen to
them or anyone else again.
Q134 Alun Michael: Yes. The answer
did not relate to the pledge to a complaint.
Gillian Guy: I would include the
pledge in that.
Q135 Alun Michael: You would merely
include it within it?
Gillian Guy: Yes.
Q136 Alun Michael: The other thing
in relation to following up where the experience of the victim
is not what is supposed to happen, we had a document on the Code
of Practice for victims of crime from the Office for Criminal
Justice Reform, which points to, I think, ten service providers
and, when it comes to the question of how to complain, provides
ten different avenues of complaint. Given that the two of you
have referred several times in your answers to the criminal justice
system as if it is a single system, is this satisfactory? Should
it be changed? Should there be a single complaint system for the
whole of the criminal justice system? What is the way forward?
Gillian Guy: I think that the
important thing is that people receiving complaints want to receive
them and act on them. In order to demonstrate that a complaints
procedure has to be as clear and simple as possible and it should
not be the job of a complainant to work their way through. The
problem with the code is that, as you have rightly identified,
there are many avenues to go and complain into and, very often,
someone going through this system, which as you say has many parts,
will not know which person has let them down or which organisation
has let them down and will not know where to go. If they do not
give up at that stage on trying to find out who to complain to,
they then have to trot along to an MP and go to the Parliamentary
Ombudsman. Our information is that in the three years in which
that code has been around the complaints to the Ombudsman are
in double figures. I do not think that the complaints about the
criminal justice system are so few.
Q137 Alun Michael: Which demonstrates?
Gillian Guy: Which demonstrates
that there is not much getting through to the Ombudsman, because
it is yet another hurdle for a complainant to get over. So the
short answer to your question is, yes, I think there should be
a straightforward single complaints system.
Q138 Alun Michael: What do you see
as the role of the prosecutor, which is the reason that I started
with the pledge? Should the prosecutor be managing that victim's
experience. Is there a role there?
Gillian Guy: Yes, I think there
is. Every person who plays a part in the experience of a victim
and witness going through the justice system has a responsibility
to look after that experience.
Paul Farmer: We would absolutely
agree that there is a role for the prosecutor in ensuring that
their experience, particularly as a witness as opposed to other
formal parts of the criminal justice system who might be considering
their experience as a victim, need to receive the appropriate
degree of help and support. We would also support a single-track
complaints procedure. Many people have to go to great lengths
in order to pursue their complaint as a victim and if they find
themselves unfairly treated, in their view, then we should make
it as straightforward as possible for them to pursue appropriate
complaints. At the moment it is a mine field.
Q139 Mr Heath: It is a very brief
point, but it is a concern of mine. I have sensed from my contact
with victims over the years that there are occasions in which
the police actually find the Crown Prosecution Service a convenient
whipping boy and will say to the victim, "We have done everything
we can, but we really cannot understand why the CPS has not prosecuted",
and that puts the CPS, does it not, in very difficult position
in actually trying to communicate to a victim what the situation
is in regard to their case if they appear to have the police saying,
"That is a load of nonsense. We know better." Is there
a way of making sure that the different elements in the system
actually give the same explanation and understand one another's
problems in this respect, because surely that must be better for
the victim at the end of the day?
Gillian Guy: I would say that
would be a laudable aim for the system. I think what it actually
points to is that it should not be the criminal justice system,
it should be a criminal justice service and that that service
then will have its outcomes and its objectives that all of the
agencies that are party to that need to sign up to, and that is
when they can start supporting one another, and working in co-location
situations, working together for those common objectives, helps
with that situation. What has happened so far is that the separation
has enabled people to pass the buck.
Paul Farmer: Our experience is
that people's experiences of the police and the CPS are equally
poor and equally good: where it worked it did not work because
of one or the other, it worked because they were working together
as a team, and, of course, in the extreme circumstances where
this does not work, such as the case that has recently been in
the High Court, FB v DPP, where really 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.
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