Keir Starmer’s view 3rd Feb 2014, having just left the CPS:
Britain’s criminal justice system fails the vulnerable. We need a Victims’ Law
The focus on the criminal justice response to victims of personal violence and abuse, particularly where it is of a sexual nature, is increasingly intense. The Savile revelations were just the start of it. Last week’s report by HM Inspector of Constabulary (HMIC), the police inspectorate, on the inconsistency of approach to rape allegations across different regional police forces, the recent drop in the number of prosecutions for rape and domestic violence, and the fact that there has not been a single prosecution for female genital mutilation (FGM) only add to the concern.
Some of the difficulties for victims in these types of case are obvious. Most of us would resist telling a stranger about our very best sexual experience; imagine telling many strangers, many times, about the very worst. It takes real courage to come forward. And the criminal justice response dictates the likelihood that anyone would.
So how does the criminal justice system respond to victims? Undoubtedly, things have improved in recent years. In my five years as director of public prosecutions, I met and dealt with many individuals who were committed to improving the lot of victims. But having reflected on my own experience, both of representing victims and as DPP, and having listened to many victims, their representatives and their families, I’m afraid I have reached some pretty unpalatable conclusions.
First, despite the good work that has gone into improving the way victims of personal or sexual violence are dealt with, many – if not most – still do not have sufficient confidence in our criminal justice system even toreport what has happened to them. Witness the fact that none of the 214 victims of recordable offences by Jimmy Savile who spoke to theOperation Yewtree police team came forward during his lifetime. The reasons for not doing so varied, but many cited a fear of not being believed or a feeling that the criminal justice system would be ineffective in prosecuting the offender. The prevalence figures for domestic violence and abuse set out in a report by the Early Intervention Foundation last week remind us that this is far from a historical matter.
Or take the case of FGM. One of the main failings in the criminal justice response to this abhorrent form of sexual abuse is that, having criminalised the practice in 1985, all concerned sat back and waited for a little girl to walk into a police station and tell a strange adult what her mummy and daddy had allowed someone to do to her. The likelihood of that happening? Very low indeed. A proactive, not reactive, response was called for.
Next, there is the problem that even if a victim does pluck up the courage to come forward, too often they are met with a number of assumptions about how “real” victims behave. The task of the police and prosecutors in assessing the likelihood that a victim will be believed in court is not easy. But until recently, based on their experience of what actually happens in courtrooms across the country every day, police and prosecutors adopted crude tests such as whether the victim reported the crime swiftly to the police, whether the victim was able to give a coherent and full account first time, whether the victim had returned to the perpetrator, and whether the victim had been affected by drink or drugs.
This tick-box exercise flushes out the model victim, but it does so at the expense of other real victims who are often vulnerable to crime precisely because they are unable to trust those in authority, they use alcohol, they return to the perpetrators of the offences against them and, not infrequently, they self-harm. If the criteria for testing their credibility match the characteristics that make them vulnerable in the first place, we have a fundamental flaw in our approach. And before anyone rushes to judgment about the police and prosecutors, I would recommend a visit to our courtrooms to watch how credibility is tested there.
Third, if criminal charges are brought, the situation does not improve a great deal. For many victims the adversarial journey through our courtrooms is such an ordeal that most vow never to repeat it. The way some victims and witnesses in the sex-grooming trials were treated makes very uncomfortable reading for any politician, lawyer or judge. When, as prosecutors, we approached some of the victims in those cases to give evidence in subsequent trials, the response was pretty well unanimous, and very clear: in capital letters in a letter to the CPS, the message was literally “fuck off”. They would rather the perpetrators went free than repeat the exercise.
Even when a case is sensitively handled, the adversarial system does not always serve victims well. One example sticks in my mind, involving a serious sexual offence against a child. The girl, who had suffered greatly in her short life and who found relations with adults very difficult, was asked questions in court by a very reasonable prosecution advocate. The child, eager to please, agreed with everything the prosecutor said. An equally reasonable defence advocate then got up. The child agreed with all her suggestions, too. In re-examination, she then agreed again with the prosecution advocate.
From a victim’s point of view, our justice system is hardly fit for purpose. No doubt individual failings by police and prosecutors provide part of the explanation. But to suggest these shortcomings are the core problem is complacent, and overlooks the real improvements that have taken place in recent years. A more radical review of our criminal justice arrangements is long overdue.
The principles and practices that underpin our justice system were developed long ago. There are good reasons for protecting those suspected of or charged with criminal offences – the answer to the current conundrum is not the conviction of innocent individuals. But our justice infrastructure was set in stone before the words “victims’ rights” were ever uttered, and long before they were given real meaning by legislation such as the Human Rights Act. (Indeed, it is a sad irony, unmentioned by those who advocate the repeal of this act that those with the most to lose are victims.)
That is not to say good work has not been done, or that progress has not been made. The staff in witness care units work tirelessly to provide the best service they can; more support is available to victims and witnesses at court than before; the CPS now has specialist prosecutors; and victims are now able to make personal impact statements. A code of practice for victims of crime, which I support, was published in October last year. And there is no shortage of good, committed police officers and prosecutors doing their very best to deliver a better service to victims.
But these measures are largely “bolt-ons” to the existing arrangements. What is needed is a fundamental rethink, leading to a specific and legally enforceable Victims’ Law, alongside a real and radical shift in attitude and approach. Perhaps we could start by retiring the description “criminal justice system” and conceive instead of a criminal justice service fit for victims.
Until then, can I advocate a pause in the oft-repeated mantra that we have the best criminal justice system in the world? Faced with the fact that most victims don’t have the confidence to come forward and that many of those who do would not do so again, that proposition is increasingly hard to sustain.