Victims' rights
Wednesday, October 17, 2007
Speech to the Victim Support Conference, 12th October 2007
First of all let me thank you for the opportunity to speak to you today, and let me thank you for the work that you all do to support and assist victims of crime - people often in an extremely vulnerable position as a result of offending against them.
Despite efforts by people such as yourselves, though, I think it is fairly clear that complainants and victims need to be much better recognised and supported in a number of ways within the criminal justice system.
My own thinking on this begins with a basic question. What is justice? Well, it’s pretty straightforward. Justice is about fairness. It’s about treating others fairly, and in relation to dealing with crime it’s about ensuring a fair outcome.
It’s obvious to me that a fair outcome must firstly include the restoration of the victim, as far as possible. It must include a consequence for the offender which incorporates elements of both punishment and preventing further offending. Ideally that should be driven by genuine remorse. And it should be fair in the eyes of the community as a whole.
I do believe most people recognise justice being done when they see it.
However the common notion of justice, of fairness, is not what drives the justice system. There the focus is on procedural correctness, on proving technical guilt and then sentencing offenders.
In sentencing policy we seem confused about whether we are trying to punish, contain or rehabilitate and so don’t do any of then particularly well. As a result of that confusion, and the complexity of sentencing, many people in the community do not often see sentences received as fair.
As a result the victims’ rights agenda has been confused by some as all about tougher sentencing policy. In the absence of evidence that tougher sentencing actually reduces offending, the tougher sentencing lobby has cast their campaign as one supporting victims. The implication is that the purpose of tougher sentencing is to make victims feel better.
Well first of all I’m not at all sure that most victims of crime would agree with all the objectives of that campaign - which seems to now include the death penalty at some time in the future, judging from comments today by the Sensible Sentencing Trust.
Of course victims have an interest in sentencing – and victims have argued for both longer and shorter sentences in their own cases at times. Sentencing should include elements that contribute to the restoration of the victim, such as reparation. The primary aim of sentencing though must be to reduce reoffending. It’s about protecting the interests of wider society.
As I said before, sentencing should be able to be seen by the wider community as fair, to be appropriate, to fit the crime. Partly that’s about expanding the options for judges so that more creative sentencing can be applied, and that’s what the recent sentencing amendments have done, but it’s also about people having the information to accurately evaluate the case.
We know that surveys demonstrate that people consistently overestimate levels of crime, especially violent crime, in society and also underestimate the typical sentence given for violent offences. Games like “you be the judge” which the Victorian Sentencing Council has developed to demonstrate how sentencing works, show that despite criticisms of sentencing length, ordinary people would usually give very similar sentences to what judges give when apprised of all the facts of a case.
Having said that, sentencing is only one thread. I don’t think we do it well in this country, but we expend a lot of energy talking about it. What we don’t as a society spent a lot of energy talking and thinking about is how the system could better restore victims of crime to well being.
It’s often said that the system is set up in favour of the offender not the victim. I don’t think that is precisely accurate. The problem is that the system has evolved to meet the needs of its inhabitants – the judges, counsel for the prosecution and the defence, the registrars and court staff. Everyone else is kind of like an extra, the only ones in the play that don’t have a script.
Offenders do get some recognition. Since the enlightenment there has been an evolving focus on what constitutes a fair trial, to try to guard against wrongful conviction. Of course that has not prevented wrongful conviction, but has reduced them. It is probably largely those procedural safeguards that some victims perceive as an “unfair advantage to the criminal”.
I do not see the right to a fair trial as incompatible with recognising victims’ rights. To me they are about different things. We cannot, in seeking to better recognise victims of crime, undermine the safeguards in our justice system that prevent innocent people being wrongfully imprisoned.
How do we better recognise victims? The Justice and Electoral Committee initiated an inquiry into victims’ rights last May. The terms of reference are:
To examine the place of, and outcomes for, victims of crime and their families in the criminal justice system by:
• reviewing legislation affecting victims, including the Victims’ Rights Act 2002
• considering the terminology used for victims
• identifying services available to victims
• examining the concept that criminals owe a debt to individuals as well as society, including issues of compensation and reimbursement of costs
• examining the effect of the current court system on victims, including the role and status of complainants during court proceedings and the adequacy of court room layout and facilities
• examining the place of restorative justice programmes in the criminal justice system and their impact on victims
• considering any other relevant matters.
That inquiry arose out of an agreement that the Government made with the Green Party in 2005. In return for support over the Prisoners and Victims Compensation Act, the Government agreed, among other things, to develop an Independent Prison Inspectorate and to conduct an inquiry into victims’ rights.
In the course of that inquiry the committee heard from a large number of submitters, including your own organisation, and also visited Victoria where we saw some impressive developments centred around their Victims Charter.
That inquiry is still under consideration and so I am unable to tell you what the report will say. I am expecting it to be completed in the next few months.
But I can talk about the issues raised by submitters. They come under 8 headings:
• financial support (including compensation)
• services for complainants and victims
• police and court procedures
• courtroom layout
• sensitivity towards complainants and victims
• organisational processes and policies
• information and communication.
• the adversarial system as a whole, including inquisitorial justice and restorative justice
Compensation
A number of people have argued that there should be better compensation for victims. They say, and I agree, that victims should not be financially disadvantaged by crime.
ACC does, of course, provide some compensation to people who have suffered physical injury, or mental injury as a result of physical injury, and to the families of people who have been killed. It does not compensate for property loss or damage or for mental trauma caused by injury to another. I’d be very interested to hear any comments from you on how ACC fulfils their role in this area.
A number of people said that reparation should be paid by the Crown and then collected from offenders, rather than relying on victims to have to chase reparations. I think that is worth supporting, although whether the government is prepared to bear the cost will be the issue. Certainly we would see more reparation orders being made if this were the case, so it is hard to estimate what the cost would be, but I think it should be supported.
Services
Many people were critical of the level of service available to victims, in that services seemed to stop at the conviction of the offender. So there was a call for a more accessible, comprehensive, and sustained system of support services for victims, which should continue as long as they were needed. These could include advocacy, liaison, counselling for as long as needed, better information etc.
Can I add that the support of Victim Support was acknowledged by many.
Police and Court
People felt poorly treated by police and court procedures. A number told us that they felt that the interests of the Crown had taken precedence, which of course is how the system is set up.
There was particular concern about Victim Impact Assessments, with people feeling pressured into changing their statements. There is a tension between requiring judges to have regard to victim impact statements, in which case they need to be constrained as to what they can say same as with general rules of evidence, or they can be relatively unconstrained but judges will them pay less attention to them in sentencing.
My feeling is that the latter might be preferable in that it may be more important that victims get to express themselves without constraint. Alternatively, it may be possible to develop a system where victims can opt to either do a formal victim impact statement or an informal address to the court.
Courtroom layout
Courtroom layout was a significant concern. This is in contrast to what the committee saw at the Neighbourhood Justice Centre in Yarra, Victoria. This was a purpose built facility with separate entrances and room for complainants and their supporters and a range of services available on site. I believe that we can learn a lot from that example.
Recognition of and sensitivity towards victims
There is just a strong need for better understanding of victims of crime in general, throughout the judicial system. This goes hand in hand with a need for better procedures and processes within all the governmental agencies that complainants and victims of crime have to deal with as they progress through the system. It’s about recognising the needs of complainants and victims and placing a high enough priority on them.
The adversarial system
Lastly, a number of people said that the real problem is the nature of our adversarial system, which turns justice into a game played between lawyers with judges as ref, and which has lost its focus on justice or truth. Exploring inquisitorial models was suggested as a long term solution. More immediately, support was expressed for expanding and enhancing access to restorative justice so that it could be used where appropriate. Lack of access was the major problem, of course acknowledging the need to ensure that restorative justice is used where appropriate (and it is not always appropriate) and that facilitators are well trained and supported.
Coming out of that there are a number of areas that needs some attention it seems to me.
Coordination
In Victoria the Victims Support Agency plays a key role in overseeing all matters related to victims issues, including coordinating and monitoring agencies that complainants and victims may be required to deal with, helping develop policy, and handling complaints. It seems to me that in NZ we have some good things happening but a central coordinating body might help to ensure there are no gaps and to advocate for Victims Rights more generally in government.
This would not be a replacement to current services, but would support and enhance what’s already there.
Compensation
It would be helpful to have something that focuses on recompensing victims for their loss. ACC does provide compensation but it is limited as I have stated.
Comprehensive information
Complainants and victims on the criminal justice system get different bits of information on their rights, and the services available to them. Comprehensive and authoritative information should be available through all the agencies that they have to deal with.
Some agencies currently give this a low priority. For example the police have acknowledged that while they do have forms available, in some stations they are below the counter and you have to know they are there to ask for them.
It’s interesting once again to look at Victoria where the police have established a Victims Advisory Unit, with a high ranking officer in charge, which has given these issues real momentum. They have initiated training and simple procedures to ensure that complainants and victims are treated with respect.
Of course it is difficult for police. We expect them to be hard arses on the one hand and then demand compassion and sensitivity on the other. It is a challenge but with good procedure I don’t think it’s insurmountable.
There are a number of other specific issues, like whether involvement in the Victim Notification scheme should be opt in or opt out. I think I favour an opt out approach, as it may be a bit much to expect people to decide to opt in early on in the process. Also issues like whether victim impact statements should only be taken by accredited people, and what role the complainant should have in court. That last is a more complex debate but one worth having.
There are various gaps in service delivery, and the government has initiated a review of services for victims of serious crime. I welcome that. One thing is certain, any changes made in this area need to be preceded by good consultation and discussion with agencies such as yours. This will ensure that any well intentioned changes do not cut across the excellent work you already do and are informed by your considerable expertise in this area.


