Victimology: victimisation and victims' rights

Victimology Victimisation and Victims’ Rights

How should the needs of victims of crime be met by the criminal justice system? Have the rights of victims been neglected in order to ensure that a defendant is brought to ‘justice’? Who are the victims of crime and why are they targeted? This new book examines the theoretical arguments concerning victimisation before examining who victims actually are and the measures taken by the criminal justice system to enhance their position. Particular attention is paid to the victimisation of women, LGBT persons, minority ethnic persons and the elderly. The book engages in a detailed exposition of the law’s response to such victimisation, focusing on the measures adopted in international human rights law, by the Council of Europe, and in English law and policy. It also assesses alternative models of victim participation in criminal proceedings in European jurisdictions such as Germany, Sweden and the Netherlands. Adopting an interdisciplinary approach which encompasses law, criminology and social policy, the book is ideal for undergraduates taking an option in victimology, race and crime, or gender and crime, whatever their disciplinary background. Lorraine Wolhuter is an LLD candidate at Stellenbosch University, South Africa, having previously been a Senior Lecturer at the University of Wolverhampton. Neil Olley is a Senior Lecturer at the University of Wolverhampton. David Denham is an Honorary Research Fellow at the University of Wolverhampton.

Victimology

Victimisation and Victims’ Rights

Lorraine Wolhuter, Neil Olley and David Denham

First published 2009 by Routledge-Cavendish 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge-Cavendish 270 Madison Ave, New York, NY 10016 Routledge-Cavendish is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2008. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” © 2009 Lorraine Wolhuter, Neil Olley and David Denham All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Wolhuter, Lorraine. Victimology : victimisation and victims’ rights / Lorraine Wolhuter, Neil Olley and David Denham. p. cm. ISBN 978–1–84568–045–9 1. Victims of crimes—Europe. 2. Victims of crimes—Legal status, laws, etc.—Europe. I. Olley, Neil. II. Denham, David, 1944–III. Title. HV6250.3.E85W65 2008 362.88094—dc22 2008006789 ISBN 0-203-89269-0 Master e-book ISBN

ISBN10: 1–84568–045–6 (pbk) ISBN10: 0–203–89269–0 (ebk) ISBN13: 978–1–84568–045–9 (pbk) ISBN13: 978–0–203–89269–5 (ebk)

Contents

Acknowledgements Table of Cases Table of Statutes 1 Introduction

xii xiv xvi 1

Key developments in victimology, policy and practice 1 Overview of the book 6 PART 1

Victimology and victimisation 2 Theories of victimology

11 13

Introduction 13 Positivist victimology 14 Conservative criminology and the victims of predatory crime 17 Radical victimology 20 Marxist victimology: Corporate crime and its victims 20 Left realist criminology: a synthesis of theories of crime and victimisation 21 Feminist concerns with the victims of crime 23 Critical victimology 26 Criminology or sociology of harm? 28 Conclusion 30 Questions for further discussion 31 3 Victimisation Introduction 33

33

vi

Contents

The extent of victimisation 34 National crime victim surveys 34 Local crime surveys 38 Victims of corporate crime 40 Repeat victimisation 43 The impact of victimisation 44 Fear of crime 46 Secondary victimisation 47 Conclusion 49 Questions for further discussion 50 4 Women victims – domestic terror and female victimisation

51

Introduction 51 Rape and sexual assault 51 The extent of rape and sexual assault 51 The impact on victims 53 Secondary victimisation 55 The rate of attrition 55 The court process 58 Male rape 59 Domestic violence 62 The nature and extent of domestic violence 62 Domestic violence against men: theoretical paradigm or paradox? 63 The impact on victims 65 Minority ethnic women 67 Secondary victimisation 68 Responses of the police and the CPS 68 The court process 72 Conclusion 72 Questions for further discussion 73 5 Victims from minority ethnic groups Introduction 75 Ethnicity, victimisation and social distribution 75 Extent of ‘ordinary’ criminal victimisation 75 Fear of crime 77 Racially motivated crime 78 Definition 78

75

Contents

vii

Distribution of crime and impact on victims 79 Impact on victims 82 Victims in rural areas 83 Religiously motivated crime 84 The perpetrators of hate 85 Secondary victimisation 87 State victimisation: police stops and searches of minority ethnic persons 90 Conclusion 99 Questions for further discussion 100 6 LGBT and elderly victims

101

Introduction 101 LGBT victims 101 Nature, extent and impact of LGBT victimisation 102 Secondary victimisation 106 Elderly victims 107 History of elder victimisation 107 Nature and extent of elder victimisation: senescent victimisation 108 Victimisation in private 109 Victimisation in private institutions 111 The hidden nature of elder victimisation in private: under-reporting levels 113 Victimisation in public 113 Conclusion 115 Questions for further discussion 116 PART II

Legal responses to victimisation 7 The development of a victims’ rights discourse Introduction 119 European jurisprudence on victims’ rights 120 Council of Europe 120 European Court of Human Rights 122 Independent civil right to a fair trial 122

117 119

viii

Contents

Incorporation of victims’ rights/interests into defendant’s right to fair trial 123 Positive obligations 125 English law and policy on victims’ rights 128 The position prior to the Victims’ Code 129 The Victims’ Code 130 The role of the courts 131 Judicial review 131 Human rights jurisprudence concerning victims 133 Towards enforceable rights 139 Conclusion 141 Questions for further discussion 142 8 Support and assistance

143

Introduction 143 Council of Europe instruments 143 ‘Official’ agencies 144 Victim Support 144 Services 145 Advocacy 146 Community and inter-agency work 148 Witness Support 149 Witness Service 149 Witness Care Units 150 ‘Unofficial’ agencies 150 Organisations responding to gender-based violence 151 Organisations responding to racism and Islamophobia 152 Organisations responding to homophobic and transphobic victimisation 153 Conclusion 154 Questions for further discussion 154 9 Information, respect and recognition, and protection Introduction 155 Council of Europe instruments 155 English law and policy 157 Pre-trial process 157 Police 158 Crown Prosecution Service 158

155

Contents

ix

Court process 159 Witness Care Units 160 Court Service 160 Measures to reduce secondary victimisation in court 161 Release of offenders 169 Effectiveness of measures 170 Conclusion 171 Questions for further discussion 172 10 Victim participation

173

Introduction 173 Forms of participation 174 Council of Europe instruments 176 Victim participation in the UK 177 Decisions to prosecute 177 Decisions to accept pleas 178 Victim Personal Statements 179 VPS scheme 179 Opposing views on VPS 180 Family Impact Statements and lawyers for families of homicide victims 182 Victim participation in the US 183 Decisions to prosecute 183 Decisions to accept pleas 183 Victim participation in sentencing 184 Victims’ lawyers 185 European models of victim participation 186 Party and non-party victims 187 Victim participation in the pre-trial stage 187 Non-party victims’ lawyers 189 Victim parties 189 Auxiliary prosecution 189 Adhesion 193 Victim participation and defendants’ rights 195 Conclusion 198 Questions for further discussion 198 11 Victim compensation Introduction 199

199

x

Contents

European provisions 199 Criminal injuries compensation 201 Origins and development 201 Criminal Injuries Compensation Act 1995 202 The Criminal Injuries Compensation Scheme 1996 203 The Criminal Injuries Compensation Scheme 2001 208 Proposals for reform 209 Compensation by the offender 210 Compensation orders 210 Reparation orders 212 Surcharges 213 Recovery orders 213 Conclusion 214 Questions for further discussion 214 12 Victims and restorative justice

215

Introduction 215 Restorative justice paradigm 215 International and European provisions 218 Restorative justice in England and Wales 220 Government policy 220 Restorative justice initiatives 221 Victim-offender mediation (VOM) 221 RJ conferencing 222 Family Group Conferences (FGCs) 225 Reparation orders 226 Referral orders 227 Effectiveness of restorative justice for victims 228 Conclusion 231 Questions for further discussion 232 13 Rights of victims from socially disadvantaged groups Introduction 233 Gender-based victimisation 233 Human rights obligations 233 Rape 235 Police and forensic services 235 Crown Prosecution Service 236 Court process 237

233

Contents

xi

Domestic violence 238 Domestic violence as ‘real’ crime 238 Support and assistance to victims 240 Minority ethnic victims 241 Racially and religiously motivated victimisation 242 Human rights obligations 242 Racially and religiously motivated offences 244 Criminal justice responses 246 Police and multi-agency partnerships 246 Crown Prosecution Service 248 Court process 249 Homophobic and transphobic victimisation 250 Human rights instruments 250 Offences 251 Criminal justice responses 252 Police and multi-agency responses 252 Crown Prosecution Service 253 Elder abuse 254 Human rights dimensions 255 English law and policy 256 American law 256 Enforcement of state duties 258 Anti-discrimination legislation 259 Human Rights Act 1998 261 Conclusion 263 Questions for further discussion 264 14 Conclusion – A victims’ rights model for the criminal process Bibliography Index

265 270 293

Acknowledgements

A considerable debt of gratitude is owed to many people for their support and assistance, without which this book would not have been possible. Lorraine Wolhuter would like to make the following acknowledgements. First and foremost, I would like to express my wholehearted gratitude to Allah, the Almighty, without Whose love, help and guidance I would have been unable to write my section of the book and to edit and complete the manuscript. ‘Praise be to Allah, who has guided us to this (felicity), never could we have found guidance, had it not been for the guidance of Allah’ (Holy Qur
an, 7:43). I am also particularly grateful to the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany, for their generous financial support and access to their comprehensive resources, which contributed greatly to my research for the book. In this regard, I am deeply thankful to Professor Reinhardt Zimmerman for his assistance and support, and to Professor Ulrich Sieber for his help and encouragement. My thanks also go to Dr Adome Kouassi, for his kindness and friendship during my visit. In addition, I am very grateful to Brian Mitchell, Dean of the School of Legal Studies, University of Wolverhampton, for providing me with generous financial support to visit the Max Planck Institute as well as encouragement throughout the process of writing my contribution to the book. I would also like to thank my colleagues at the School of Legal Studies, University of Wolverhampton, for their support, and Josefin Karlsson and Anna Adelof for translating Swedish legislation. David Denham would like to make the following acknowledgement. I would like, in particular, to thank Dr Andy Cooper, School of Humanities, Languages and Social Sciences, University of Wolverhampton, for his kindness in partially remitting my teaching in the summer of 2007, which assisted me greatly to complete my research for the book. Finally, all the authors would like to thank Laurel Angus for her excellent editing of the book.

To my father, George: thank you for your love, support and patience. Lorraine To Betty, Roy and Zoe: thank you for putting up with me. Neil To Ann: thank you for all your support. David

Table of cases

United Kingdom Brooks v Metropolitan Police Commissioner [2005] UKHL 24 ......................... 137, 138 C v Secretary of State for the Home Office [2003] EWIJC 1295 (QB) ....................... 134 Hill v The Chief Constable of West Yorkshire [1989] AC 53 .............................. 137, 138 Practice Direction (Victim Personal Statements) [2002] 1 Cr App R 8 ....................... 179 R v A (No. 2) [2001] 2 Cr App R 21 .......................................................... 164, 165, 266 R v Criminal Injuries Compensation Board, Ex parte A [1999] 2 AC 330 (HL) ......... 132 R v Davis; R v Ellis and Others [2006] 2 Cr App R 32 ............................................. 134 R v Director of Public Prosecutions, Ex parte C [1995] 1 Cr App R 136 ................... 132 R v Director of Public Prosecutions, Ex parte C [2000] WL 281275 .......................... 132 R v Director of Public Prosecutions, Ex parte Manning [2001] QB 330 .................... 132 R v M (KJ) [2003] 2 Cr App R 21 ............................................................................ 135 R v Martin [2004] 2 Cr App R 22 ............................................................................ 164 R v Perks [2001] 1 Cr App R (S) 19 .......................................................................... 180 R v Secretary of State for the Home Department, Ex parte Fire Brigades Union and Others [1995] 2 AC 513 (HL) ................................................................. 134, 202 R v Sellick and Sellick [2005] 2 Cr App R 15 .................................................... 135, 168 R v Xhabri [2006] 1 Cr App R 26 ............................................................................ 136 R (August) v Criminal Injuries Compensation Appeals Panel; R (Brown) v Criminal Injuries Compensation Appeals Panel [2001] QB 774............................. 203 R (D) v Camberwell Green Youth Court; R (Director of Public Prosecutions) v Camberwell Green Youth Court [2005] 2 Cr App R 1 ................................... 136, 162 R (on the application of D) v Camberwell Green Youth Court; R (on the application of DPP) v Camberwell Green Youth Court [2005] 1 All ER 999 at para 9. .................................................................................................................269 R (on the application of M) v Criminal Injuries Compensation Appeals Panel [2001] EWHC Admin 720 ................................................................................... 206 R (on the application of Patricia Armani da Silva) v Director of Public Prosecutions, Independent Police Complaints Commission [2006] EWHC 3204 (Admin).............................................................................................................. 132 R (TB) v Stafford Crown Court [2006] EWHC 1645 (Admin) .................................. 139 S v Criminal Injuries Compensation Board [2004] SLT 1173 ............................. 134, 204 S v Gloucestershire County Council; L v Tower Hamlets London Borough Council and Another [2001] Fam. 313 ................................................................. 138

Table of cases

xv

Van Colle v Chief Constable of Hertfordshire [2006] HRLR 25 ................. 126, 137, 139 X v Bedfordshire County Council [1995] 2 AC 633 .................................................. 138

United States Hughes v Bowers 711 F Supp 1574 (ND Ga 1989) .................................................... 186 In re Kenna (Kenna II) 453 F 3d 1136 (9th Cir 2006) .................................................. 185 Kenna v District Court 435 F 3d 1011 (9th Cir 2006) ................................................. 184 United States v Degenhardt 405 F Supp 2d 1341 (D Utah 2005) ................................ 184 United States v Stamper 766 F Supp 1396 (DNC 1991)............................................. 186

European Court of Human Rights A v UK (1999) 27 EHRR 611 .................................................................... 127, 251, 255 Adulaziz, Cabales and Balkandali v UK A.94 (1985) 7 EHRR 471............................ 262 August v UK Application no. 36505/02, 21 January 2003 .................................. 134, 204 Doorson v The Netherlands (1996) 22 EHRR 330 .............................. 124, 196, 197, 268 DP and JC v UK (2003) 36 EHRR 14 ...................................................................... 127 E v UK (2003) 36 EHRR 31.............................................................................. 127, 138 Edwards v UK (2002) 35 EHRR 19 .......................................................................... 126 L and V v Austria (2003) 36 EHRR 55 .................................................................... 261 Lucà v Italy (2003) 36 EHRR 46 .............................................................................. 124 McCourt v UK (1993) 15 EHRR CD 110 ................................................................. 180 Osman v UK (2000) 29 EHRR 245 .................................................... 123, 125, 137, 255 Perez v France (2005) 40 EHRR 39 ................................................................... 123, 196 PS v Germany (2003) 36 EHRR 61 .......................................................................... 124 SN v Sweden (2004) 39 EHRR 13 ...................................................... 125, 136, 197, 268 Stuart v UK Application no. 41903/98, 6 July 1999 .................................................. 205 Stubbings v UK (1997) 23 EHRR 213 ...................................................................... 128 Thlimmenos v Greece (2001) 31 EHRR 15............................................................... 262 X and Y v The Netherlands (1986) 8 EHRR 235 ...................................................... 128 Z and Others v UK (2002) 34 EHRR 3 ...................................................... 127, 138, 139

Miscellaneous Criminal Proceedings Against Pupino [2005] 3 WLR 1102 (ECJ) ...................... 122, 267 Ian William Cowan v Tresor public 1989 ECJ 195 ................................................... 200 Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994) (Human Rights Committee) .................................... 250

Table of statutes

United Kingdom Anti-Terrorism, Crime and Security Act 2001 .......................................................... 245 Children Act 2004................................................................................................... 127 Consumer Credit Act 1974 ....................................................................................... 40 Contempt of Court Act 1981 .................................................................................. 237 Crime and Disorder Act 1998 ................................. 89, 149, 212, 220, 223, 226, 240, 245 Criminal Injuries Compensation Act 1995 ......................................... 134, 201, 202, 213 Criminal Justice Act 1972 ....................................................................................... 210 Criminal Justice Act 1988 ................................................... 135, 136, 167, 168, 202, 210 Criminal Justice Act 2003 ........................................... 136, 159, 161, 162, 167, 168, 213, 223, 245, 251, 265 Criminal Justice and Immigration Act 2008 ..................................................... 227, 251 Domestic Violence, Crime and Victims Act 2004.................... 5, 131, 132, 147, 152, 158, 169, 170, 177, 213, 238 Equality Act 2006..................................................................................... 233, 259, 260 Equality Act (Sexual Orientation) Regulations 2007 ................................................ 259 Human Rights Act 1998 ................................ 128, 129, 131, 133, 137, 139, 233, 261, 263 Police and Criminal Evidence Act 1984 ............................................................ 167, 238 Powers of Criminal Courts (Sentencing) Act 2000................ 210, 212, 223, 226, 227, 245 Public Order Act 1986 ............................................................................................ 244 Race Relations Act 1976 .................................................................................. 259, 260 Race Relations (Amendment) Act 2000 ............................................................ 233, 259 Racial and Religious Hatred Act 2006 .............................................................. 243, 244 Sex Discrimination Act 1975............................................................................ 259, 260 Youth Justice and Criminal Evidence Act 1999 ................... 4, 8, 131, 136, 155, 159, 161, 162, 163, 165, 167, 168, 171, 220, 227, 265, 266, 267

United States Crime Victims’ Rights Act 2004, incorporated into Justice for All Act of 2004, Pub. L. No. 108–405 ............................................. 119, 140, 142, 183, 184, 185, 186, 267 California Penal Code............................................................................................. 256 Elder Justice Act 2007 ............................................................................................. 257

Table of statutes

xvii

Germany Strafprozeβordnung (Code of Criminal Procedure) .................................................. 187

Sweden Rättegångsbalk Ds 1998:000 (Code of Judicial Procedure, unofficial English translation) ......................................................................................................... 187 Lag om Målsägandebiträde 1988:609, as amended (Act Concerning Counsel for the Injured Person/Party, unofficial English translation)............................................. 189

Netherlands Terwee Act 1995 ..................................................................................................... 194

Conventions, Declarations and UN Resolutions Convention on the Elimination of All Forms of Discrimination Against Women 1979 G.A. res. 34/180, 34 UN GAOR Supp. (No. 46) at 193, UN Doc. A/34/46 ...... 233, 234 Convention on the Elimination of All Forms of Racial Discrimination 1966 G.A. res. 2106 (XX), Annex, 20 UN GAOR Supp. (No. 14) at 47, UN Doc. A/6014 ...... 242, 244, 258 Declaration on the Elimination of Violence Against Women 1994 G.A. res. 48/104 .......................................................................................................... 234 European Convention on the Compensation of Victims of Violent Crimes 1983 ...... 3, 9, 199, 200, 201, 203, 205, 206, 207, 208, 209, 210, 214, 265 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 ................... 119, 122, 123, 126, 128, 133, 134, 136, 137, 138, 139, 164, 166, 168, 197, 204, 205, 251, 254, 255, 256, 258, 261, 262 International Covenant on Civil and Political Rights 1966 G.A. res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 ................ 250, 251, 252, 254, 255, 256, 258 Treaty on European Union 1992 ................................................. 121, 122, 140, 142, 267 United Nations Resolution on Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters 2002 .......................................... 218, 219, 220, 221

Council of Europe Instruments Framework Convention for the Protection of National Minorities 1995 CETS No.: 157 ............................................................................................................. 243 Framework Decision on the Standing of Victims in Criminal Proceedings 2001/220/JHA ...................................................... 4, 120, 143, 155, 176, 199, 215, 265 Recommendation No. R (85) 11 of the Committee of Ministers to Member States on the Position of the Victim in the Framework of Criminal Law and Procedure 1985 ........................................................................................ 3, 120, 176 Recommendation No. R (87) 21 of the Committee of Ministers to Member States on Assistance to Victims and Prevention of Victimisation 1987 ......................... 3, 121

xviii

Table of statutes

Recommendation No. R (97) 13 of the Committee of Ministers to Member States concerning Intimidation of Witnesses and the Rights of the Defence 1997 .... 156, 161, 235, 254, 255, 256, 258 Recommendation No. R (99) 19 of the Committee of Ministers to Member States on Mediation in Penal Matters 1999............................................................. 218, 220 Recommendation Rec (2002) 5 of the Committee of Ministers to Member States on the Protection of Women Against Violence 2002 ............................................. 234 Recommendation Rec (2006) 8 of the Committee of Ministers to Member States on Assistance to Crime Victims 2006 ..................... 121, 141, 143, 156, 200, 201, 266, 267

Chapter 1

Introduction

The status of victims of crime has altered significantly in the last century. The study of victims has moved from the margins of criminological theory to the discipline of victimology. Crime surveys have extended their remit to include information concerning victims’ experiences of the impact of crime and the responses of criminal justice agencies. The role of victims in the criminal justice system has also been reconsidered, as victims have become ‘key player[s]’ rather than ‘forgotten actor[s]’ in the criminal process (Zedner, 2002, p. 419). The purpose of this book is to evaluate these changes in the role of victims in the fields of victimology, victimisation studies, and law and criminal justice policy, and to highlight areas in which further changes ought to be considered. This chapter presents a brief timeline of the key developments in the UK that mark the movement of victims from margin to centre. In addition, it provides an overview of the contents of the various chapters of the book.

Key developments in victimology, policy and practice Victims of crime began to receive academic attention after the Second World War with the emergence of the sub-discipline of victimology (Mawby and Walklate, 1994, pp. 69–70; see Chapter 2). This theoretical interest in victims was matched at the policy level by a welfarist focus on the government’s responsibility to provide citizens with protection from ‘disease, squalor, and ignorance, idleness, and want’ (Mawby and Walklate, 1994, p. 70). This notion of government responsibility was based on the assumption that, as citizens are parties to an implied social contract, they are entitled to insurance against such conditions (Mawby and Walklate, 1994, pp. 70–1). These welfarist principles informed the recommendations for victim compensation made by Margery Fry, one of the leading social welfare reformers of the 1950s. On the basis of the principles of collective responsibility and collective social insurance, she contended that the state had a duty to compensate victims for injuries consequent upon crime (Dignan, 2005, p. 43). The Criminal Injuries Compensation Scheme (CICS), which was established

2

Victimology: Victimisation and Victims’ Rights

in 1964, was largely attributable to Fry’s work (Dignan, 2005, p. 43), which had been taken forward by Justice, an advocacy group, after her death (Mawby and Walklate, 1994, p. 75). It restricted compensation claims to ‘deserving’ victims of violent crime (Mawby and Walklate, 1994, p. 75; see Chapter 11), reinforcing the exclusion in positivist victimology of victims who precipitated or otherwise contributed to their own victimisation (see Chapter 2). The emphasis on victims’ needs, which was reflected in the work of Fry and the establishment of the CICS, was consolidated in the 1970s with the formation of Victim Support. The first Victim Support scheme, which was established in Bristol in the early 1970s, attracted funding from the National Association for the Care and Resettlement of Offenders (NACRO) (Goodey, 2005, p. 104). Within a surprisingly short period, it had been joined by other victim support schemes, and in 1979 the National Association of Victim Support Schemes (which subsequently became Victim Support) was established (Goodey, 2005, p. 104). Victim Support grew extensively in the 1980s, attracting considerable government funding. Mawby and Walklate ascribe its popularity with the government to three primary factors. First, in contrast to the critical stance adopted by other organisations, such as Rape Crisis (see below), Victim Support was politically neutral, thereby presenting no challenge to the Conservative government (Mawby and Walklate, 1994, p. 80). Second, it was a voluntary, community agency that focused on individuals helping one another to deal with the aftermath of crime. Unlike the earlier welfarist initiatives, it did not emphasise dependence on the government, but rather the empowerment of individuals as ‘active citizens’. These principles fitted with the Thatcherite government’s aversion to ‘the dependency culture’ that had characterised the post-war period (Mawby and Walklate, 1994, pp. 80–1). Third, Victim Support provided services to victims, thus reinforcing the notion of citizens as consumers of public services that the Conservative government was concerned to embed within the public consciousness (Mawby and Walklate, 1994, p. 81). This notion of consumerism was premised on the view, which was favourable to the government, that citizens (including victims) have responsibilities as well as rights (Mawby and Walklate, 1994, p. 85). The receipt of large-scale government funding enabled Victim Support to develop into a national organisation providing assistance to victims of crime (see Chapter 8). In view of the fact that it retained its political neutrality until the 1990s, its earlier work focused predominantly on ‘neutral’ victims, such as victims of street crime and property offences, although it did also provide services to rape victims (Mawby and Walklate, 1994, pp. 80, 82). Radical feminist theory, which emerged in the 1970s, highlighted the extent of violence against women and children, locating its genesis in the structural institution of patriarchy. It consequently challenged the concept of victim precipitation espoused by positivist victimology, contending that it amounted to victim-blaming that obscured the patriarchal underpinnings of gender-based

Introduction

3

violence (see Chapter 2). The academic emphasis on such violence sparked the development of women’s organisations, such as Rape Crisis, which engaged in advocacy on behalf of women and provided support to victims (Dignan, 2005, p. 56; see Chapter 8). By the 1980s, the issue of violence against women and children had begun to receive the attention of the government. The police introduced ‘rape suites’ in police stations to provide rape victims with a more comfortable, less threatening environment in which to report incidents of rape. In addition, they were required by the Home Office to use their powers of arrest more frequently in domestic violence cases. Furthermore, child victims of sexual abuse were permitted to give evidence by live TV link (Mawby and Walklate, 1994, p. 82; see Chapter 9). The 1980s also saw the increased use of national and local victim surveys by the government (Goodey, 2000, p. 15). However, this was due more to the failure of the government to stem the rising tide of crime than to the development of a victim-centred consciousness. The propensity of such surveys to reveal information about the impact of crime on victims as well as their levels of fear of crime nonetheless fitted with the concern of left realist victimologists to address the reality of victims’ experiences that had hitherto been overlooked (Goodey, 2000, p. 15; see Chapters 2 and 3). The interest in victims in the UK in the 1980s was paralleled by the introduction of several victims’ measures by the Council of Europe. In 1983 it adopted the European Convention on the Compensation of Victims of Violent Crime (the Compensation Convention), in terms of which Member States are required to contribute to the compensation of victims who have been seriously injured as a consequence of an intentional crime of violence (see Chapter 11). Like the CICS, the Compensation Convention is premised on the notion of the ‘deserving’ victim, thereby entrenching the view that victims who precipitated their own victimisation ought not to qualify for compensation. In addition, in the 1980s the Committee of Ministers of the Council of Europe adopted two significant, albeit non-binding recommendations concerning victims. The first, Recommendation No. R (85) 11 on the Position of the Victim in the Framework of Criminal Law and Procedure (1985), imposed duties on Member States to take account of victims’ interests in the criminal process, whereas the second, Recommendation No. R (87) 21 on Assistance to Victims and Prevention of Victimisation (1987), concerned state duties to provide for victims outside the criminal justice system (see Chapter 7). These three measures reflected an increasing recognition on the part of the Council of Europe that victims’ interests had hitherto been overlooked and that reforms to make greater provision for victims were required. The 1980s accordingly represented a period of growing concern for victims in the UK as well as in Europe. However, this concern led to the introduction of measures to provide for victims’ needs rather than the recognition of legally enforceable victims’ rights.

4

Victimology: Victimisation and Victims’ Rights

The 1990s saw the beginnings of a discourse of victims’ rights. Critical victimology advocated the recognition of rights for victims as a means of ensuring that the state responded effectively to their lived experiences of victimisation (Mawby and Walklate, 1994, p. 179; see Chapter 2). Victim Support, which had become significantly less politically neutral by the 1990s, contributed to the development of this rights discourse in practice by calling for the introduction of victims’ rights (Dignan, 2005, p. 53; Victim Support, 1995; see Chapter 8). However, the government’s response was equivocal. The first Victim’s Charter, which was adopted in 1990, comprised only ‘guiding principles’ for the treatment of victims, and was not legally enforceable (Dignan, 2005, pp. 66–7). It was replaced by the Victim’s Charter 1996, which created ‘service standards’ rather than rights for victims. In terms of these standards, victims could expect criminal justice agencies, amongst other things, to provide them with information, respect and support, but had no legally enforceable rights to demand that they did so. Despite its lack of enforceability, however, the Victim’s Charter nonetheless represented the government’s first formal commitment to provide for victims’ needs and was consequently regarded as a ‘substantial improvement in the lot of victims’ (Rock, 2004, p. 162; see Chapter 7). The 1990s were also marked by other significant developments. Victim Support expanded its services to victims by obtaining government funding to pilot the Witness Service – a service involving the provision of support and assistance to victims at court – in several Crown Courts. By 2002, it had established the Witness Service not only in all Crown Courts but also in all magistrates’ courts in England and Wales (Victim Support, 2002b, p. 18; see Chapter 8). Furthermore, the government adopted fairly wide-ranging measures to protect victims in trial proceedings. The Youth Justice and Criminal Evidence Act 1999 (YJCEA) introduced several victim-centred reforms to the law of evidence. Special measures, such as testifying by means of a live TV link or video recording, were made permissible in certain circumstances. In addition, crossexamination of rape victims by the defendant in person was prohibited, and restrictions were imposed on the admissibility of sexual history evidence (see Chapter 9). The aim of these reforms was to reduce the secondary victimisation experienced by victims, particularly vulnerable victims, during the court process and consequently to encourage such victims to testify. By the end of the 1990s, victims had moved substantially from the margins to the centre of criminal justice policy. However, victims’ discourse remained embedded in the language of ‘needs’ rather than ‘rights’, and victims were still mere witnesses for the Crown, with no legal standing. The Council of Europe Framework Decision on the Standing of Victims in Criminal Proceedings (2001/220/JHA) heralded a significant change in the status of victims that shifted European victims’ discourse firmly onto the terrain of rights. The Framework Decision, which is binding on the UK, provides victims with several rights, including the right to information and the right to protection (see Chapter 7). The UK government responded to the Framework

Introduction

5

Decision by expressing its intention to establish statutory rights for victims (Home Office, 2001b). However, such rights have not materialised, with the government reverting in recent years to the discourse of victims’ ‘needs’ and ‘services’ for victims (Home Office, 2002b; see Chapter 7). This discourse is reflected in the Code of Practice for Victims of Crime 2005 (the Victims’ Code), which constitutes the government’s response to its obligations in terms of the Framework Decision. The Victims’ Code, which is statutory, was introduced in terms of the Domestic Violence, Crime and Victims Act 2004 (DVCVA). It imposes service obligations on criminal justice agencies, such as the police and the Crown Prosecution Service (CPS), to provide victims with, inter alia, information, protection, sensitivity and respect. However, it does not give victims enforceable rights, but merely permits them to complain if the service obligations are not met (see Chapter 7). The twenty-first century has also seen the adoption of other victim-centred reforms, which are likewise premised on a discourse of needs rather than rights. A national scheme allowing victims to make victim personal statements (VPS) in which they explain the impact of the crime on them, and which may be taken into account at the sentencing stage, was introduced in October 2001 (Rock, 2004, p. 212). This scheme has recently been supplemented by pilot projects permitting the families of homicide victims to make family impact statements (FIS) and to be represented by lawyers at the sentencing stage (Walklate, 2007, p. 115). VPS and FIS accommodate victims’ needs to be given a ‘voice’ at the sentencing stage but grant them no right to participate actively in the proceedings (see Chapter 10). Apart from the above measures that apply to victims generally, specific measures for victims from unequal social groups have been introduced by various criminal justice agencies, such as the police and the CPS. For instance, proarrest and positive prosecution policies in domestic violence cases have been implemented. Sexual Assault Referral Centres for rape and sexual assault victims have also been established. In addition, the police and the CPS have devised policies to respond more effectively to racially and religiously motivated crime as well as homophobic and transphobic violence. The proliferation of such policies and practices in recent years is a welcome sign that the government is beginning to develop an inclusive approach to victimisation that recognises the broader structural underpinnings of victimisation and its relation to social inequality (see Chapter 13). The measures adopted by the traditional criminal justice system to provide more effectively for victims’ needs have been paralleled by the development of a series of restorative justice initiatives in the last two decades (see Chapter 12). These initiatives, such as family group conferencing, restorative cautioning and community conferencing, focus on restoring the relationships between victims, offenders and the community (Obold-Eschleman, 2004, p. 572), and purport to provide a more effective means of empowering victims than the traditional criminal justice system. However, Braithwaite has acknowledged that, although

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Victimology: Victimisation and Victims’ Rights

restorative justice embodies a concern for victims, it ‘must reject a radical vision of victim empowerment’ in order to ensure that the needs of offenders and the community are also considered (Braithwaite, 2002, p. 160). Restorative justice is thus outside the parameters of a discourse of victims’ rights. The above analysis highlights the extent to which concern for victims has generated a spate of laws and policies, particularly in the last two decades, designed to support victims and to make inroads into the terrain that has traditionally been the preserve of the state and the offender. Despite the progressive demarginalisation of victims that such laws and policies entail, however, their status remains unchanged. They have no legal standing in criminal proceedings and no enforceable rights to ensure that criminal justice agencies comply with their duties. Although other common law systems, such as America, and continental systems, such as Germany, have introduced far-reaching rights for victims (see Chapters 7 and 10), the UK shows no signs of following suit. Drawing on the rights enshrined in the Framework Decision, as well as the position in comparable jurisdictions, the second part of this book aims to develop an argument for the establishment of such rights.

Overview of the book As indicated above, the content of the book spans victimological theory, victimisation studies and law and criminal justice policy pertaining to victims. It is accordingly divided into two parts. The first part comprises five chapters on victimology and victimisation, while the second part concerns legal responses to victimisation. In Chapter 2, David Denham evaluates the various strands of mainstream victimology, namely positivist victimology, conservative victimology, and Marxist and left realist victimology. He also assesses feminist perspectives on victimology and draws attention to the recent work of sociologists of harm, who contend that criminology ought to focus not merely on crime but on the broader category of harm. He presents an analysis of critical victimology, pointing to its emphasis on the relation between victims’ lived realities of victimisation and broader structural processes. He highlights the strategies that critical victimology advocates to transform these lived realities, such as rights for victims, and indicates that this constitutes the theoretical backdrop to the second part of the book. Chapter 3, which is also written by David Denham, comprises an empirical analysis of primary and secondary victimisation, drawing on the findings of victim surveys as well as qualitative research. His assessment of primary victimisation includes a consideration of the extent of crime and its impact on victims generally. However, he highlights the ways in which victims of corporate crime have been overlooked in victim surveys and victimisation studies. In addition, he explores victims’ experiences of secondary victimisation at the hands of criminal justice agencies. This general assessment of primary and secondary

Introduction

7

victimisation provides an introduction to the detailed consideration of the victimisation experienced by victims from socially unequal groups in Chapters 4, 5 and 6. In Chapter 4, Neil Olley analyses the primary and secondary victimisation experienced by women victims. He assesses the extent and impact of rape and sexual assault as well as the ways in which the high attrition rate and court experiences of victims in rape cases result in secondary victimisation. Although he emphasises that rape is predominantly directed at women, he points to the increasing incidence of male rape. He also considers the nature, extent and impact of domestic violence, contending that current levels of domestic violence against men challenge feminist analyses that regard domestic violence as predominantly perpetrated by men against women. However, he draws attention to the fact that domestic violence affects minority ethnic women differently and frequently more severely than white women. He evaluates victims’ experiences of secondary victimisation, documenting the high withdrawal rate of complaints as well as the under-charging practices of the CPS and the trivialisation of victims’ experiences at trial. His analysis of gender-based violence constitutes the foundation for the assessment of relevant criminal justice responses in Chapter 13. Chapter 5, which is also authored by Neil Olley, considers the relationship between race and victimisation. Drawing on findings from victim surveys, he considers the extent to which minority ethnic persons are at greater risk of ‘ordinary’ crime than white persons. In addition, he documents the nature, extent and impact of racially motivated crime, highlighting the continued existence of secondary victimisation by criminal justice agencies, particularly the police, despite the Macpherson Report (1999). Furthermore, he draws attention to the experiences of victims of racially motivated crime in rural areas and victims of religiously motivated crime. Chapter 5 concludes with an analysis of the extent to which the police discriminate against minority ethnic groups in the exercise of their powers to stop and search. The assessment of victims’ experiences of racially and religiously motivated crime informs the evaluation of criminal justice responses to such crime in Chapter 13. In Chapter 6, a two-part chapter, Neil Olley addresses the victimisation of members of the lesbian, gay, bisexual and transgender (LGBT) community as well as elder victimisation. He documents the nature, extent and impact of homophobic and transphobic crime, as well as the secondary victimisation experienced by victims at the hands of the police. He shows that discriminatory attitudes on the part of the police as well as the general public contribute to the under-reporting of such crime. His analysis of elder victimisation explains the nature, extent and impact of such victimisation in private homes and institutions, as well as in public spaces. He demonstrates that elder victimisation occurs predominantly in private spaces and is extensively under-reported. Chapter 6 forms the basis of the assessment of criminal justice responses to homophobic/transphobic and elder victimisation in Chapter 13.

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Victimology: Victimisation and Victims’ Rights

Part two of the book, concerning legal responses to victimisation, is authored by Lorraine Wolhuter (who is also the author of the introductory and concluding chapters, and has edited the book with the substantial assistance of Laurel Angus and prepared the manuscript for submission). Chapter 7 considers the progressive development of a victims’ rights discourse on the part of the Council of Europe and the European Court of Human Rights (ECtHR), indicating that, despite the recent introduction of the Victims’ Code, English law has been reluctant to follow suit. It demonstrates, however, that despite this reluctance, the judiciary, following the example of the ECtHR, has become increasingly willing to uphold rights for victims in specific cases. The chapter refers to the American Crime Victims Rights Act 2004 and contends that victims’ rights giving legal standing to victims ought to be introduced in the UK. It nonetheless emphasises that such statutory rights must be supplemented by specific measures pertaining to victims of corporate crime and victims from unequal social groups to ensure that they are able to access these rights effectively. With the exception of Chapter 12, which deals with restorative justice, each of the subsequent chapters assesses the extent to which English law and policy give effect to the various rights contained in the Framework Decision. Chapter 8 documents the duties in the Framework Decision to provide support and assistance to victims. It evaluates the activities of Victim Support and other ‘unofficial’ organisations, concluding that, in the case of support and assistance, the absence of enforceable victims’ rights has not precluded the UK from discharging its duties. Chapter 9 considers the extent to which the Victims’ Code and the protections for vulnerable victims in the YJCEA comply with the duties in the Framework Decision to provide victims with information, respect and recognition, and protection. It argues that, although these measures comply with the Framework Decision, the fact that the duties placed on criminal justice agencies in the Victims’ Code are not enforceable and the provisions of the YJCEA are subject to judicial discretion undermines their effectiveness for victims. Chapter 10 comprises a comparative analysis of victims’ right to participate in criminal proceedings in light of the right to be heard in the Framework Decision. It assesses the provisions for victim participation in the UK, such as VPS and lawyers for the family members of homicide victims, contending that as these forms of participation do not clothe victims with party status, they amount to passive participation only. It considers the auxiliary prosecution procedure in Germany and Sweden, emphasising that it constitutes victims as full parties to the case and thus amounts to active participation. In addition, the chapter evaluates the use of victims’ lawyers in these jurisdictions as well as in the US. It takes the view that, as Sweden has adversarial trials yet nonetheless employs auxiliary prosecution and victims’ lawyers, these procedures are compatible with adversarial principles. It accordingly advocates their introduction in the UK in order to enhance victims’ participation in the criminal process.

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Victims’ right to compensation is assessed in Chapter 11, which sets out the state’s duties in terms of the Compensation Convention and the Framework Decision. The chapter argues that, despite certain shortcomings, the CICS complies, for the most part, with the provisions of the Compensation Convention, but emphasises that recent government proposals to restrict the CICS violate these provisions. The chapter also evaluates the measures for obtaining compensation from offenders, indicating that, although they comply with the Framework Decision, several barriers, such as enforcement difficulties, impede their effectiveness. Chapter 12, which takes a slightly different form from the other chapters, analyses restorative justice processes in the UK in the light of growing international and European interest in such processes. It contends that, despite the proliferation of these processes, they have serious shortcomings for victims, particularly those from unequal social groups, which may exacerbate rather than reduce secondary victimisation. It takes the view that, instead of extending restorative initiatives, the UK ought to introduce more measures, such as statutory victims’ rights and victims’ lawyers, to enhance victims’ positions in the formal criminal process. Chapter 13 assesses the adequacy of criminal justice responses to genderbased violence, racially and religiously motivated crime, homophobic/ transphobic crime and elder abuse in light of the UK’s international obligations. It shows that, with the exception of elder abuse, current responses to such crimes have improved, but points out that several inadequacies persist. The chapter also considers the extent to which English law allows victims to institute actions against criminal justice agencies for failing to investigate, prosecute and punish such crimes effectively. The concluding chapter consists of a synopsis of the primary conclusions reached in the second part of the book, and sets out the features of a proposed victims’ rights model for the criminal justice process.

Part 1

Victimology and victimisation

Chapter 2

Theories of victimology

Introduction Although this chapter focuses on the theories that have been developed to explain victimisation, it is necessary at the outset to explain how these theories relate to criminological theory. The study of victims has had a much shorter history than criminology but it has reflected the concerns of many theories of crime. Dignan (2005) and Goodey (2005) describe victimology as a new and expanding sub-discipline within criminology. Dignan states that, while criminology has concentrated on crime and criminals, victimology is concerned with crime and its victims (2005, p. 31). Victimologists address different aspects of victimisation, such as theories of victimisation, the needs of victims, the impact of victimisation, the fear of crime and victim surveys. Some victimologists are primarily engaged in an academic analysis of victimisation while others might be called activists who are mainly involved with the provision of victim services. Early references to the role of victims in crime and how they might precipitate or be culpable for their own victimisation are found in the works of Von Hentig (1948) and Mendelsohn (1956 and 1974, cited in Zedner, 2002). According to Zedner (2002, pp. 420–1), Wolfgang’s study Patterns in Criminal Homicide (1958) and Amir’s Patterns of Forcible Rape (1971) continued the theme of victim precipitation. This approach attracted criticism from feminists for implicitly blaming victims, particularly in the context of rape, by giving credence to widespread gendered views that the victim may have ‘asked for it’ (Walklate, 1989, p. 4). Consequently, there was little interest in victim precipitation approaches within mainstream criminology during the 1960s and 1970s. In the 1980s and 1990s ‘radical’ and ‘critical’ victimologists challenged these criticisms and turned their attention to the ‘wider political, economic and social context of victimisation’ (Zedner, 2002, p. 421). The more recent study of victimisation has been stimulated by political concerns with victimisation, victim movements and a developing social and criminal justice response to the needs of victims. The rest of this chapter will concentrate on one aspect only of this growing interest in victimisation, namely, the influence of criminological and victimological theories on the study

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Victimology: Victimisation and Victims’ Rights

of victimisation. It will be argued that some theories not only deem victimisation to be worthy of study as part of criminology but also that they have different priorities concerning types of victimisation. Several writers have attempted to characterise the different strands of victimological theory. Karman (1990, cited in Carrabine et al., 2004, p. 117) divides the field into conservative, liberal and radical, while Walklate (2003) refers to positivist, radical and critical ‘emphases within the discipline’. In this chapter a more complex classification of positivist, conservative (sometimes called right realist), Marxist and left realist (representing different perspectives within radical criminology), feminist and critical victimology will be used in order to highlight different political, theoretical, scientific and empirical orientations to the field of victimology. In addition, recent arguments for the development of a criminology of harm, which focuses not on crime but on the broader category of harm, will be considered briefly.

Positivist victimology Positivist criminology is concerned with finding the causal conditions for criminal behaviour and it thus assumes that the presence of these conditions makes the criminal ‘different’ in some way from law-abiding members of society. The same logic was applied in positivist approaches to victimology. Positivist victimology deals with the measurement of the amount of victimisation, the development of typologies of victimisation, explanations of why some people are more prone to victimisation than others, and the relationship between the criminal and the victim which may indicate the ways in which victims may precipitate crime (Wright and Hill, 2004, p. 109). The hunt was on to discover what distinguishes victims from the ideal-typical individual who does not suffer crime. Hans von Hentig (1948) and Benjamin Mendelsohn (1956 and 1974, cited in Zedner, 2002) were key early figures in the development of victimology. Both writers were concerned with the relationship between the criminal and the victim. Von Hentig (1947, p. 383) referred to the ‘doer–sufferer’ relationship and Mendelsohn discussed the ‘penal couple’ (1974, p. 6). Von Hentig’s study implied that there were psychological or social variables which made an individual prone to victimisation. In The Criminal and His Victim (1948), he referred to the victim’s contribution to the genesis of crime and the ‘causative’ role of the victim. He insisted, for instance, that victims may incite, provoke or create a situation conducive to the committing of crime. Mendelsohn’s ‘bio-psycho-social and legal’ approach led to an estimation of victim culpability in the incidence of crime. He described a situation in which a woman continued to encourage her ex-husband to visit their child regularly for several years after their divorce, and to stay overnight, only to be sent away after he had handed over all his money. Commenting on a crime passionnel which involved the murder, by the husband, of his wife and her lover, he concluded

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that ‘[t]here can be no doubt that, had it not been for the perversity of his former wife, he (the husband) would never have been guilty of two crimes’ (1974, p. 6). Fattah points out (2000, p. 13) that later studies were concerned with types of victim and the role of victims in crime in general or in specific crimes, such as criminal homicide (Wolfgang, 1958; Fattah, 1971), rape (Amir, 1971) and robbery (Normandeau, 1968). This perspective on the role of the victim in precipitating crime suggests that some people put themselves at greater risk of being a crime victim – an idea that was elaborated in the ‘lifestyle’ model put forward by Hindelang, Gottfredson and Garofalo (1978, cited in Fattah, 2000). Cohen and Felson (1979, cited in Fattah, 2000, p. 18) similarly developed a ‘routine activity’ approach to explain ‘direct-contact predatory violations involving direct physical contact between at least one offender and at least one person or object which that offender attempts to take or damage’ (Cohen and Felson, 1979, p. 589, cited in Fattah, 2000). According to this model, victimisation in predatory offences occurs when there is a convergence in space and time of motivated offenders, suitable targets and an absence of suitable guardians. Fattah developed the above typologies, and other similar typologies, into a schema comprising the following 10 categories (Fattah, 1991, cited in Fattah, 2000, p. 19): 1 Opportunities: these are linked to the characteristics and activities of potential targets. 2 Risk factors: socio-demographic characteristics including age, gender, area of residence or absence of guardianship. 3 Motivated offenders: the criteria by which offenders select their victims. 4 Exposure: exposure to potential offenders and risk situations enhances the risk of criminal victimisation. 5 Associations: people run a greater risk of victimisation when they have close social or professional contact with potential delinquents and criminals. 6 Dangerous times and dangerous places: times when risks are greater, such as late night hours and weekends, and places at greater risk, such as sites of public entertainment. 7 Dangerous behaviours: certain behaviour, such as negligence and carelessness, enhances the chances of property victimisation while other behaviour, such as hitchhiking, may put people in dangerous situations. 8 High-risk activities, such as the pursuit of fun, which may include deviant and illegal activities, also increase the potential for victimisation. 9 Defensive/avoidance behaviours: people who fear crime are more likely to avoid the risk of victimisation by staying at home, for instance. 10 Structural/cultural proneness: people who are powerless and deprived are more likely to be victims of crime.

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Victimology: Victimisation and Victims’ Rights

The above summary of the contexts which may precipitate or reduce the risk of victimisation illustrates the way in which the positivist concern with the role of the victim may be interpreted as ‘victim blaming’. Positivist criminology assumes the existence of a consensus about the nature of crime and thus overlooks the conflicts between various social groups concerning which activities should be criminalised (Cohen, 1973). Positivist victimology shares similar assumptions and shortcomings. For instance, as the examples from the founders and influential positivist victimologists discussed above suggest, the focus is on conventional crimes, such as street crime or domestic burglary. There is also the assumption that the home is a safe place and that crime largely occurs in public places. As will be seen below, these assumptions have been contested by feminist scholars, who have highlighted the extensive victimisation of women in their own homes due to domestic and sexual violence, as well as child and elder abuse (see Chapters 4 and 6). A further problem with the positivist approach is the oversight of crimes committed by corporations in the pursuit of their business activities, which, for reasons connected with the ways in which laws covering corporate offenders are weakly enforced and treated differently by law enforcers (Carson, 1971; Slapper and Tombs, 1999), constitute a ‘hidden’ form of crime. Some forms of corporate crime, such as the mis-selling of endowment policies, may even occur in a domestic situation. Millions of endowment policies were sold in Britain in the 1980s and 1990s as a means of house purchase, and many were undertaken in the course of a home visit by representatives from financial organisations who failed to point out that a fall in interest rates could lead to a shortfall in their value. A report by the House of Commons Treasury Committee (2004) believed that a review covering 11 million policies, carried out by the Financial Services Authority, showed that between 50 per cent and 60 per cent were mis-sold. An important contribution of positivist victimology has been the development of ways of measuring the nature and extent of crime (Davies et al., 2003, p. 3). Crime surveys have become one of the most frequently utilised methods of measuring crime. The positivist concern with crime measurement stimulated the demand for a regular British crime survey which would compensate for the inadequacies of the ‘Criminal Statistics’ which are derived from the compilation of police records. Criminologists had long been concerned with the ‘dark figure’ of unknown crime due to a lack of reporting of offences by the public and the failure of the police to record all offences reported to them. The British Crime Survey (BCS), which was first published by the Home Office in 1983, accordingly came to form the basis of official figures on trends in crime (Hough and Mayhew, 1983). During the 1980s and 1990s it was variously published at two- or four-yearly intervals but since 2001 it has been published annually (Kershaw et al., 2001, cited in Davies et al., 2003). Early surveys were based on a representative sample of 10,000 people aged 16 years or more, although by 2000 the sample had been increased to 40,000 adults. In addition to recording the instances in which people have been victims of crime, editions of the BCS

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have focused on trends in crime, the fear of crime and the risk of crime (see Chapter 3). The BCS has become a major source of information about the pattern of crime for criminologists, but a household survey of crime victims has some limitations. It ‘does not capture sufficiently the extent of sensitive crimes such as sexual crimes and domestic violence’ (Davies et al., 2003, p. 8). Furthermore, as it is a survey of individuals it does not provide information on crimes against organisations, such as shoplifting or fraud. It only surveys crimes where people are aware of their status as victims and, as such, does not research forms of corporate crime where people may not be aware of the law or of the ways in which they may suffer harm or loss. Victim surveys therefore do not cover cases of pollution of the atmosphere, tax avoidance or the raiding of company pension schemes by corporations. Victim surveys probe more effectively into those crimes which people are aware of, but which they choose not to report because they do not consider the offence serious enough, prefer to resolve the matter themselves, or believe that the police would not be able to do much or would not be interested (Matheson and Summerfield, 2001). The emphasis in crime surveys, therefore, is on personal crimes against people and their property, which is also a major concern of conservative and left realist criminology.

Conservative criminology and the victims of predatory crime A populist, conservative criminology emerged during the 1980s and early 1990s when the US and Britain were governed by the New Right. The work of conservative scholars ranged from those who emphasised the importance of free choice, as was the case in the early classical school, to those, such as Wilson and Herrnstein (1985, cited in Hopkins Burke, 2003, p. 33), who regarded biological and psychological factors as shaping individuals’ criminal propensities. As Lilley et al. point out (2002, p. 192), these conservative theories attributed crime to individual choice or pathology rather than to the structural inequalities of society. If society was blamed in any way, the fault was ascribed to permissive culture, which lacked a strong morality and respect for authority. These theorists recommended crime-control policies that would increase social controls upon individuals, especially through schools, the family and the criminal justice system. James Q. Wilson was one of the main proponents of conservative criminology. He was a ‘right realist’ in the sense that he argued that victim surveys show how crime is a major burden on the lives of the poor and the inhabitants of disadvantaged communities. One of Wilson’s most influential books, Thinking About Crime (1975, 2nd edn, 1985), starts and ends with references to his views on human nature which set him against positivist and radical perspectives, downplay the seriousness of crime, and adopt an optimistic perspective of

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Victimology: Victimisation and Victims’ Rights

the possibility of shaping human nature through socially progressive policies and rehabilitation. In his concluding paragraph he states: Wicked people exist. Nothing avails except to set them apart from innocent people. And many people, neither wicked nor innocent, but watchful, dissembling, calculating of their chances, ponder our reaction to wickedness as a clue to what they might profitably do. (Wilson, 1985, p. 260) Wilson noted that, as rehabilitation has not been effective in treating serious offenders, and as crime rates have not declined despite progressive social policies, punishment, deterrence, incapacitation and new crime-control techniques ought to be tried and evaluated (1985, p. 5). As the previous quotation implies, Wilson sees criminals as calculating individuals who are looking for a chance to profit and whose decision whether or not to commit crime may be affected by social measures to prevent crime and punish wrongdoers. His version of conservative criminology involves a return to a neo-classical, utilitarian view of rational actors making cost-benefit calculations in the light of the chances of being caught and punished. Social progress does not prevent crime. People steal because the advantages of doing so outweigh the advantages of working (1985, p. 6). Crime is caused not just by the absence of jobs, as might be advocated by liberal criminologists, but by the absence of penalties (1985, p. 7). Instead of attempting to alter human nature by general progress or individual rehabilitation, Wilson contended that crime may be prevented by altering the choices facing would-be offenders (1985, p. 9). Wilson also set himself apart from radical criminologists of the 1970s by his lack of concern for ‘white-collar’ crime, despite his admission that it has serious effects. He focused on predatory crime, particularly crimes by strangers against innocent persons, as, in his view, such crime generates fear that divides people and hinders or precludes ‘the formation of meaningful human communities’, thereby contravening ‘the social contract’ (1985, p. 5). Hence, his focus was on burglaries, robberies, rapes, murder, unprovoked assault and predatory street crime. In a chapter on crime and community Wilson emphasised certain types of crimes and their victims. He pointed out that predatory crimes not only victimise individuals but also impede the development and preservation of community by destroying social ties and concomitantly generating an atomised society. Members of society accordingly become calculating individuals ‘estimating their own advantage, especially their chances for survival amidst their fellows’ (1985, p. 26). In Wilson’s view, intra-community crime was a major threat to a sense of community. Surveys of urban problems, he claimed, showed that crime, public immorality, delinquency and improper behaviour in public places figured as the respondents’ main concerns. Wilson had a particular sense of ‘concern for the community’ by which he meant:

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the desire for the observance of standards of right and seemly conduct in the public places in which one lives and moves, those standards to be consistent with, and supportive of the values and life styles of the particular individual. (1985, p. 28) Crime and improper behaviour represent a breakdown of community and the failure of informal, neighbourhood controls. The theme of the breakdown of informal community controls recurs in a chapter jointly written by Wilson and Kelling entitled Broken Windows: The Police and Neighbourhood Safety (Wilson, 1985, pp. 75–89). The chapter addresses issues such as the problem of incivilities, lack of respect and antisocial behaviour, which have become central concerns regarding crime and victimisation in Britain under New Labour. In an assessment of a policing scheme which increased the number of foot officers, Wilson and Kelling pointed out that whilst many people are afraid of violent crime, people are also fearful of being ‘bothered’ by what they call ‘disorderly people’ who are ‘disreputable’, ‘obstreperous’ or ‘unpredictable’, such as ‘panhandlers, drunks, addicts, rowdy teenagers, prostitutes, loiterers, the mentally disturbed’ (1985, p. 76). Wilson and Kelling distinguished between ‘order maintenance’ and crime-control policing and argued that the former had declined as the police had concentrated on controlling crime. Officers on street patrol, they argued, were effective in reducing anxiety about crime because they were able to concentrate on those people who disturbed order on the street by moving them on or by setting rules governing their behaviour, such as identifying places where people could, and could not, drink on the streets. This distinction between two types of policing was also linked by Wilson and Kelling to a developmental model of crime by which unattended repairs to, say, a broken window contribute to deterioration in an area as ‘one unrepaired broken window is a signal that no one cares’ (1985, p. 78). A signal is given out that informal and formal controls have broken down, thus attracting further offending, such as drug use, prostitution, vandalism and mugging. The theory of broken windows has implications for policing. Some areas, in Wilson and Kelling’s estimation, suffer such excessive crime and have such damaged informal systems of social regulation that foot patrols would be ineffective. There is little that can be done in such areas other than responding to calls for police assistance which is also the case in areas which have low crime and a strong informal system of control. The police, therefore, need to concentrate their scarce resources in areas where ‘public order is deteriorating but not unreclaimable’ (1985, p. 88); where broken windows, or their equivalent, need to be fixed quickly before the level of incivility increases and crime escalates. Wilson’s work is relevant to the current discussion of the victim in criminological theory because it focuses on the importance of both incivilities and

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Victimology: Victimisation and Victims’ Rights

predatory crime. In addition, it has shifted thinking about crime back to the neo-classical conception of crime as the consequence of rational decision making and its emphasis on the role of deterrence in reducing crime. In these respects conservative criminology has been influential in the US and Britain, where there has been a re-emphasis on increasing punishment and target hardening. It has also contributed to the development of a conservative victims’ rights discourse in the US that favours the recognition of victims’ rights to participate in sentencing decisions as a means of exacting retribution (see Chapter 7).

Radical victimology Marxist victimology: corporate crime and its victims The Marxist criminology that developed in the 1970s coincided with a period of radicalisation and industrial conflict in Britain. Taylor, Walton and Young (1973 and 1975) argued that it was possible to analyse crime using Marx’s ideas on the nature of capitalism, the class system, exploitation and the role of the state. It was also contended that Marx’s materialist method could be applied to the study of crime, criminal law and law enforcement in terms of their relationship with economic relations (Taylor et al., 1975, p. 44). Taylor, Walton and Young turned to Marxism because of a belief that deviance should be considered as authentic human action, namely as a result of the ways that people confront structures of power, domination and authority rather than as some form of individual or social pathology. Their focus was on the ‘importance of the initiative of the state and its entrepreneurial representatives, in defining and sanctioning certain forms of behaviour at certain points in time’ (Taylor et al., 1973, p. 268). They were also concerned with asserting ‘the possibility of a society in which men are able to assert themselves in a fully social fashion’ and are able to live in freedom from ‘the constraints of forced production’ within a society in which ‘there would be no politically, economically or socially induced need to criminalise deviance’ (1973, p. 270). Their formal theory of deviance and crime was a mixture of insights from labelling theory and Marxist structural analysis, which included placing the deviant act in its wider structural origins, such as the social inequalities of power, wealth and authority, and, thus, advocating a political economy of crime. A criminological theory, they argued, must be able to explain the different ways in which structural demands are interpreted, for instance how a deviant choice is made as a ‘solution to the problems posed by existence in a contradictory society’ (1973, p. 271). As suggested by social reaction, or labelling theory, factors affecting the decision to react should be considered, as should the political context of the decision to react. An overriding feature of their theory is the integration of the above dimensions of the model in which ‘[m]an is both determined by the fact of his imprisonment and also

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determining in the sense that he creates (and is able to struggle against) his own imprisonment in capitalism’ (Taylor et al., 1973, p. 277). The Marxist approach to crime focused on the crimes of the economically deprived as well as the economically privileged and both are seen by Taylor, Walton and Young to share the same qualities as they occur in the context of a society where there is a struggle for property, wealth and economic selfaggrandizement, where there are unequal opportunities, and where both rich and poor pursue legal and illegal ways of amassing wealth. Those criminalised in the UK are predominantly working-class persons and the legal system, it is argued, is disproportionately geared to the criminalisation of their activities (Taylor et al., 1975, p. 34). The view that working-class property crimes are closely linked to the degree of legitimacy or political opposition accorded capitalist society was open to criticism as critics on the right, and later the left, pointed out that much working-class crime is committed against the working class. The discussion within Marxist criminology of the crimes of the powerful has had a greater and more lasting significance. Taylor, Walton and Young argued that a Marxist criminology must examine the systematic and structural nature of ruling-class deviancy which they believed is a ‘resolution to material predicaments of ruling class groups’ (1975, p. 32). A similar point was made by Box (1983), who argued that corporate crime was linked to the structural uncertainties of market societies. As strain and uncertainty increase due to changes in the environment in which companies compete in the market, they are constrained to innovate and find new ways of maintaining their profitability and, in consequence, they face pressures which may lead to a drift into crime. This argument is premised on the view that ruling-class crime is endemic within capitalism and is not just a result of the moral lapses of individuals. Marxist criminologists also contended that law enforcement is much weaker as regards ruling-class crime and more resources are devoted to the conviction of working-class offenders. Finally, the crimes of the powerful, it is claimed, involve much greater financial costs to society (Pearce, 1976), as well as causing greater death and injury, especially because of corporate offences against health and safety laws (Box, 1983). These arguments have continued to influence a number of criminologists who have produced a range of studies of corporate crime, such as Pearce and Tombs (1993), Tombs and Whyte (2003) and Slapper and Tombs (1999). Left realist criminology: a synthesis of theories of crime and victimisation Left realist criminology was developed by a group of British criminologists in the 1980s, including Jock Young, John Lea and Roger Matthews, and has had an impact on left-wing-oriented criminologists in North America. ‘The central tenet of left realism is to reflect the reality of crime, that is in its origins, nature

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and its impact’ (Young, cited in Walklate, 1993, p. 50). In the first major statement of the left realist position Lea and Young (1984) refer to the impact of conventional and street crime, because of the effect of these crimes on the poorest members of society. Whilst Marxist criminologists, to whom they refer as ‘left idealists’, may be correct to point out how middle-class and professional people commit crimes such as pollution or tax fraud, they point out that it is necessary to focus on the impact of intra-class crime committed by the poorest against people within their own communities. These are the crimes that the poorest sections of society are most likely to suffer and which are compounded by their additional victimisation by corporate crime as well as their vulnerability to other forms of deprivation. Moreover, the poorest people experience the greatest impact of crime because of their lack of income and resources. Left realists were concerned with developing a perspective with a left, social democratic orientation which could contribute to the formation of policies to reduce crime, in a context in which the initiative on crime control was being seized by the political right in Britain. It is not so much a new theory but an integration of various ideas from earlier theories of crime, and is best understood in terms of its critique of left idealism, conservative criminology and positivist criminology. Conservative criminology was castigated for regarding the criminal as either under-socialised or essentially evil and therefore to be deterred from crime by the fear of being caught and punished and, concomitantly, for neglecting the social structural causes of crime. Positivist criminology was criticised for concentrating on various criminogenic pathologies, such as genetic propensities and inadequate early socialisation. Conservative, Marxist and positivist perspectives were accused by Young of ‘distancing’ themselves from the connection between crime and the core structure and values of society (1997, p. 479). Left realism argued that other perspectives are partial as they focus on only some aspects of the process of crime rather than on them all. Such perspectives either emphasised the victim, the offender, the ‘social reaction’ to the crime or the ‘criminal behaviour itself’. Conversely, left realism aimed ‘to bring together all aspects of the process’, thus emphasising ‘synthesis rather than a simple dismissal of opposing theories’ (Young, 1997, p. 485). By trying to look at the process of crime as a whole, Young introduced the idea of a square of crime in which the actors at each corner are seen to interact and in so doing affect the level of crime.

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It is not necessary, for the purposes of this chapter, to discuss the full implications of the many ways of examining the interaction between the actors in the square of crime, but it is worth noting that a focus on policing may involve an analysis of the role of the police in labelling deviants and adopting strategies which increase the arrest rate within certain groups. If the police alienate sections of the public they may receive less co-operation and, therefore, lack the information they need to solve crimes. A discussion of offenders led Lea and Young to develop a structural explanation of crime amongst lower workingclass males, and some minority ethnic communities, in which they drew upon the sense of relative deprivation experienced by these groups, who could see other groups advancing materially compared with themselves. This concept was combined with the idea of sub-cultures as a solution to social problems and the marginalisation of young people from work, the political process and trade union representation to form a structural explanation of their involvement in crime (Lea and Young, 1986; Young, 1997, p. 488). The position of victims in the square of crime opens up a discussion about the relative vulnerability of certain groups and how some groups are not only more likely to be victims of crime but also less able to cope with the impact of crime. Left realism, then, devotes a great deal of attention to the victims of crime as well as stimulating the analysis of victims of various crimes, such as street crime, racially motivated crimes and domestic violence. Within left realism, the victim survey became a potentially key research tool for providing a better understanding of victims, as well as providing an essential resource in a democratic and accountable policing system. Victim surveys, Lea and Young argued, could supplement what the police know about crime in their areas from the police arrest statistics and from victim-reported crime. These surveys could be part of a debate about policing needs in different communities and could be used to obtain information not provided by other sources of crime statistics, such as ‘the incidence of domestic violence, illegal acts by police officers, and the specific problems of ethnic minorities’ (Lea and Young, 1986, p. 261). Despite their concern to document crimes such as domestic violence more accurately, however, left realists have been criticised for failing to appreciate that victims may not want to reveal their victimisation in a victim survey and that their methods may not be appropriate to such cases. Furthermore, it has been contended that their ‘understanding of race issues is . . . partial and incomplete’ (Spalek, 2006, p. 41).

Feminist concerns with the victims of crime By the 1980s feminist scholarship was beginning to turn its attention to criminology and, in particular, to the fact that existing criminological theories were gender-blind. In feminist analysis, the category ‘gender’ is regarded as a social construction based on cultural expectations rather than biological differences. Criminological theory was viewed as drawing on gendered categories

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of ‘masculinity’ and ‘femininity’ because crime committed by women was either overlooked or explained by reference to women’s attempts to forge or sustain relationships with men (Naffine, 1987, cited in Walklate, 2004, p. 31). Crime was, by and large, regarded as ‘men’s work, not women’s’ (ibid, p. 31). ‘Malestream’ criminology has its counterparts in victimological theory. As has been pointed out above, feminist scholars criticised positivist victimology for engaging in victim-blaming based on gender stereotypes and assumptions of what behaviour is ‘appropriate’ for women. Victims of rape, for instance, were blamed for their own victimisation because ‘they asked for it’. It has also been mentioned above that feminists took issue with left realism for its failure to develop a research method that fully accommodates victims’ experiences of domestic violence. The work of radical feminists, which emerged in the 1970s, played a significant role in the development of feminist perspectives on victimology. Radical feminism was concerned to develop a critique of the institution of patriarchy, which was regarded as the most fundamental, widespread and enduring form of oppression which permeates all social institutions and beliefs. Patriarchy comprises the exercise of male power over women, frequently by means of violence, which is facilitated by men’s control of the state, social institutions and ideas (Lengerman and Niebrugge, 1996, p. 462). Radical feminists highlighted the way in which such violence is hidden from view or implicitly sanctioned by the state on the basis of gendered views of women’s sexuality and ‘appropriate’ roles in the domestic sphere. MacKinnon, for instance, argued that the maleness of the state as well as the legal system obscures women’s experiences of rape. In a patriarchal system, she contended, ‘a victim, usually female, always feminized, is “never forced, only actualized”. . . . The assumption that in matters sexual women really want what men want from women, makes male force against women in sex invisible’ (MacKinnon, 1989, p. 141). Criminal justice agencies were also criticised for responding ineffectively to women’s experiences of rape on the basis of such assumptions (see Chapter 4). In addition, radical feminism pointed to the way in which the institution of patriarchy generated a dichotomy between the public and private spheres. Whereas the public sphere, namely the sphere of the state, the workplace and other public institutions, was dominated by men, women were relegated to the private sphere of the home. Domestic violence, which is used as a form of male control over women in the private sphere, was disregarded by the state and criminal justice agencies on the basis of gendered conceptions of family privacy. The theoretical focus of radical feminism on violence against women was supplemented by research methods that emphasised the importance of responding sensitively to women’s experiences. The use of feminist methodology has facilitated the documenting of rape and domestic violence, which is often not reported to the police or uncovered in crime surveys (Spalek, 2006, p. 42).

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Drawing on the insights of radical feminism, feminist scholars have been concerned to highlight women’s agency in resisting and managing their own experiences of violence. They have contended that women are not merely passive recipients of male violence but active individuals who strive to improve their circumstances and their relationship with their abusive partners (Spalek, 2006, p. 43). Consequently, feminist researchers prefer to refer to women as ‘survivors’ rather than victims (Spalek, 2000; Walklate, 1994). Despite the attention given by radical feminism to the hidden male violence perpetrated by men against women, Pizzey (1998) has pointed out that some of the women who had obtained refuge from their battering husbands also admitted that they had, on occasions, been violent towards their husbands. The focus of radical feminism on a unitary woman’s experience has been challenged by critical race feminists as essentialist. They have contended that gender essentialism, namely the construction of all women’s experiences of victimisation on the basis of white women’s experiences, obscures minority ethnic women’s experiences. Furthermore, the race essentialism that characterises critical race theory also excludes these experiences by focusing on the experiences of minority ethnic men. Minority ethnic women’s experiences are accordingly relegated ‘to a location that resists telling’ (Crenshaw, 1993b, p. 1242). In order to ‘tell’ this location, it is necessary to develop a multivalent perspective involving ‘a fluid perspective that sees back and forth across boundary’ (Williams, cited in Laster and Raman, 1997, p. 211). Critical race feminists have therefore opened up a ‘discourse of difference, recognizing the diversity of female experience’ (Hopkins Burke, 2005, p. 165). Crenshaw developed the concept of intersectionality to facilitate the theoretical explanation of this diversity. She argued that theorists should engage in an intersectional analysis which focuses on the experiences of minority ethnic women as minority ethnic women, and not as either women or racial minorities (Crenshaw, 1993a, p. 385). An intersectional analysis recognises that ‘[i]ndividuals experience the complex interplay of multiple systems of oppression operating simultaneously in the world’ (Bond, 2003, p. 76). It must thus be distinguished from a ‘gender-plus’ approach, which regards gender as the central axis of subordination and other axes, such as race, as merely intensifying the experience of gender oppression (ibid, p. 145). The ability of an intersectional analysis to document the nature of minority ethnic women’s victimisation may be illustrated by reference to South Asian women’s experiences of domestic violence in the UK (see Chapter 4). In terms of the accepted social hierarchy in South Asian communities, which privileges men over women, and older people over younger people, women victims may be doubly subordinated – to their husbands and male family members on account of gender as well as to their mothers-in-law and other older female family members on account of age (Chana, 2005, p. 38). In addition, their behaviour is dictated by the notion of izzat (family honour), on the one hand, and its converse, shame, on the other (Gill, 2004, p. 474). Although it is regarded as a

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familial value, izzat is predominantly concerned with the honour of male family members (Bhopal, 1997, pp. 64–5). A significant element of izzat is placing the family above the self. Domestic violence victims are therefore constrained to place the family above themselves by keeping the domestic violence private. Telling outsiders damages izzat and brings shame on the family (Gill, 2004, p. 474). Women who break this silence risk serious punishment and, in extreme cases, even death (Chana, 2005, p. 29). They also receive no support from the senior female family members, such as their mothers-in-law, as women are ‘taught that saving face and family unity are more important than individual safety’ (Gill, 2004, p. 477). Minority ethnic women thus face strong cultural barriers, based on gender and age hierarchies, which prevent them from reporting their victimisation to the authorities (Chana, 2005, p. 18). However, in addition to being constrained from within their communities, South Asian women experience racial exclusion from the white community (Bhopal, 1997, p. 77), which is reflected in the attitudes of criminal justice agencies. There is a tendency on the part of criminal justice agencies to adopt a non-interventionist approach to domestic violence in minority ethnic communities for fear of appearing to be culturally insensitive (Chana, 2005, p. 24). Failures to intervene increase the social isolation of minority ethnic victims. Furthermore, victims’ fear of police racism combines with cultural barriers to reduce reporting levels. Gill has emphasised that an understanding of ‘the historical impact of institutional racism’ is necessary on the part of criminal justice agencies in order to enable them to appreciate why minority ethnic women are reluctant to report domestic violence (Gill, 2004, p. 467). South Asian women’s lived experiences thus comprise interconnected fragments of oppression on the basis of gender, age, culture and race that constrain them to remain silent about their experiences of domestic violence. An intersectional analysis is able to capture the complexity of these experiences in a manner that is obscured by radical feminist analyses. Furthermore, the concept of intersectionality is capable of producing a more accurate understanding of the way in which other axes of oppression, such as sexuality, gender identity and gender, intersect to generate specific forms of victimisation on the part of LGBT persons (Moran and Sharpe, 2004, p. 400; see Chapter 6).

Critical victimology Critical victimology is a product of the work of Mawby and Walklate (1994). It was developed in response to the inadequacies of positivist and radical victimology (Spalek, 2006, p. 44). Mawby and Walklate criticised positivist victimology for searching for regularities or patterns which precipitate victimisation. They contended that this scientific approach hides the theorist’s values behind a façade of objectivity. Furthermore, the victim-blaming that is implicit in the concept of victim precipitation has marginalised feminist concerns with

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gendered crimes, such as domestic violence, rape, sexual harassment and child abuse (Mawby and Walklate, 1994, p. 10). Mawby and Walklate also challenged the functionalist assumptions of positivist victimology concerning social order and the existence of consensus regarding the nature of law and the definition of victimhood. Positivist victimology assumes that victims are those who suffer at the hands of lawbreakers and fails to consider the way in which the law, or the state, contributes to an understanding of the victim. Furthermore, ‘[t]here is no sense within this view of the way in which individuals may actively resist, campaign against or survive the label “victim” ’ (1994, p. 12). Mawby and Walklate also highlighted the weaknesses of radical victimology, in both its Marxist and left realist forms. They contended that, despite the fact that radical victimology, in its emphasis on the role of the state in producing definitions of criminality and victimhood, and on the existence of societal conflict rather than consensus, contained a challenge to positivist victimology, it ended up slipping into positivism by assuming that it is possible to generate universal principles that are not historically specific. In addition, it has given rise to ‘a very limited research agenda’ (1994, p. 14). Similarly, they argued that left realism, albeit cognisant of the reality of the impact of crime on victims, was nevertheless premised on a partial understanding of realism and also slipped into positivism by relying on the victim survey (1994, p. 15). In an attempt to resolve the weaknesses of positivist and radical victimology, Mawby and Walklate developed a critical victimology that is concerned to document victims’ lived realities as well as the way in which the social structure shapes these lived realities. A determination of ‘what constitutes the real’ was central to their first concern (1994, p. 18). Their concept of the ‘real’ drew on Bhaskarian ideas about an underlying reality behind the appearance of things or ‘what goes on behind our backs’ (Walklate, 2003, p. 122). Consequently, they drew on Giddens’ structuration theory (1984), which postulates some underlying processes which contribute to the construction of everyday reality: people’s conscious activity, their ‘unconscious’ activity (that is routine activities people engage in which serve to sustain, and sometimes change, the conditions in which they act), the generative mechanisms (unobservable and unobserved) which underpin daily life, and finally, both the intended and unintended consequences of action which feed back into people’s knowledge. (Mawby and Walklate, 1994, p. 19) This focus on what is seen as well as what is hidden resonates strongly with the emphasis of feminist scholars on the importance of opening the private sphere of gender-based violence to public scrutiny, so that the law may be constrained to develop appropriate responses to women’s victimisation. In addition, it highlights the fact that women are active agents who develop strategies for survival

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and resistance rather than passive victims (1994, p. 19). Human subjectivity is thus central to an accurate depiction of victims’ lived reality. Although crime surveys are valuable, they cannot capture the full dimensions of this lived reality (1994, p. 19). However, critical victimology did not focus only on victims’ lived realities. Mawby and Walklate argued that an analysis of ‘the recursive relationship between agency and structure’ is required (1994, p. 20) in order to understand how historical, cultural and socio-economic processes, as well as the power of the state, ‘underpin specific individual action at specific moments’ (1994, p. 20). In view of its emphasis on human agency, critical victimology nonetheless contended that victims have the potential ‘both to sustain and to change the conditions under which they act’ (1994, p. 177). One of the central ways to achieve such change is through advocacy on the part of victims’ movements for the recognition of victims’ rights. Mawby and Walklate pointed to the existence of certain flaws in the concept of victims’ rights. First, the neutrality of the term ‘victim’ obscures the fact that victims belong to diverse groups who may be socially unequal, such as women, children and elderly people. It may accordingly be preferable to ‘construct a claim to rights based upon structural inequities rather than on the basis of criminal victimization alone’ (1994, p. 178). Second, the law is premised on a male-centred concept of rights that does not address women’s lived realities (1994, pp. 178–9). However, Mawby contended that ‘a justice-based approach’ to victims’ rights may overcome these concerns by focusing on the fact that victims are citizens who have rights as regards their welfare. The fact of their citizenship engenders a state duty to accord these rights to victims. Furthermore, these rights must be substantive in order to ensure that they address victims’ lived realities (1994, p. 179). The emphasis of critical victimology on victims’ rights has engendered a strong victims’ rights discourse on the part of victims’ movements that has been subsumed into the Council of Europe discourse on victims as well as the jurisprudence of the European Court of Human Rights in recent years (see Chapter 7).

Criminology or sociology of harm? Thus far, this chapter has assessed theories dealing with crime and victimisation rather than social harm more generally. However, zemiology, or the study of social harm, is a ‘significant and fast expanding and contemporary variant of critical criminology’ (Hopkins-Burke, 2005, p. 179) that cannot be overlooked. This approach accepts that the study of crime and the criminal justice system has a certain coherence as a discipline, but it is critical of criminology’s narrow focus on conventional crimes when, as was pointed out by Schwendinger and Schwendinger (1970, cited in Hopkins-Burke, 2005, p. 179), a great deal of harm can be attributed to sources such as sexism, racism, imperialism and economic exploitation.

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This perspective was argued forcefully in a collection of essays entitled Beyond Criminology: Taking Harm Seriously (Hillyard et al., 2004). The essays support the aim of establishing a discipline of the study of social harm which goes beyond the narrow confines of criminology and seeks to contribute to policies which enhance social justice more broadly and successfully than criminology has been able to do. Some harms such as the mis-selling of financial products like pensions and endowments do involve criminal offences but they may well not be perceived as crimes and may be ignored by the criminal justice system. Other harms may be seen as ‘accidents’, ‘mistakes’ or the unfortunate workings of the market economy. The sociology-of-harm approach challenges criminology in several respects. It contends that criminology concentrates on criminal harm, which is a small part of the total harms suffered, and that much criminal harm is insignificant compared with other types of harm (2004, p. 9). Furthermore, critical criminologists have frequently pointed out that crime is a social construct, that it does not have any intrinsic qualities and, thus, that what is regarded as a crime varies over time and between different societies. It is therefore not surprising that it is impossible to construct a general explanation of crime. Hillyard and Tombs also argue that attempts to control harm by means of criminal sanctions and imprisonment are not successful because of the high rate of repeat offending amongst ex-prisoners (2004, p. 16). Moreover, the use of criminal sanctions has led to an increasingly expensive crime-control industry. From the social harm perspective, victimisation caused by crime ought to be part of a wider discipline concerned with how individuals and groups suffer harms ‘which are deleterious to their welfare’ (2004, p. 18). Hillyard and Tombs identify physical harms, such as premature death or injury due to car ‘accidents’, injuries sustained at work, exposure to environmental pollution, assaults, illness and disease, lack of adequate food and shelter, and death or torture inflicted by state officials. They also refer to financial/economic harm, including poverty, unemployment and forms of cash loss. This category includes loss incurred through fraud, increased prices due to price fixing and regressive taxation. In addition, they discuss emotional and psychological harm and threats to cultural safety, such as loss of autonomy and opportunities for development and growth. The collection of essays comprises various approaches to social harm. One such approach consists of a political economy of neo-liberal globalisation and its impact through de-regulated markets and increasing inequality within and between nations (Tombs and Hillyard, 2004). Another concerns the nature of moral indifference within capitalist societies (Pemberton, 2004). In addition, other social harm theorists refer to the harm of social policies in the fields of immigration and poverty (Webber, 2004; Dorling, 2004). These references to just one collection of essays devoted to the study of social harm reveal an enormous array of types and causes of harm. The extent of possible harms and the range of disciplines that might contribute

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to the study of social harm pose questions about the viability of ‘harm’ as a discipline in its own right. Researchers may conceivably apply themselves to any harm that they choose, according to their own values and inclinations. Despite the difficulties of defining ‘crime’ and its socially constructed nature and variability between societies, criminology does denote the study of legally defined behaviour that is socially harmful and attracts condemnation. The sociology of harm, meanwhile, is open to the accusation that researchers are moral entrepreneurs who choose their subject matter according to their moral or political values. Hillyard et al. respond to this criticism by pointing out that ‘if to adopt a definition of harm is partly a moral choice, then we must accept that to adopt a definition of crime as the guiding criterion of a field of study is equally a moral choice’ (Hillyard et al., 2004, p. 274, emphasis in the original). They suggest that the problem of the relativism of the concept of harm may be resolved by studying types of harm that are perceived as such by the majority of the population. However, not all harm is of this type and it is inevitable that some students of harm will concentrate upon the harmful effects of activities which are not widely seen as problematic. It appears, therefore, that sociologists of harm must accept that their value preferences are more transparent than those of criminology because criminologists can derive a degree of legitimacy from the discourses concerning crime and justice. They must thus be prepared to defend their choice of research area more openly and accept that there will be contestation and debate surrounding their work (Hillyard, 2004, p. 274). A good example of research on harm, which may be seen as value laden, is research concerned with the social effects of market societies as there has been a hegemonic project regarding the inevitability and superiority of deregulation and marketisation for the last 30 years. Nevertheless, there have been studies which relate crime (Taylor, 1999; Denham, 2002) and psychological stress to market reforms (Lai and Lee, 2006).

Conclusion This chapter has shown that, over the last 30 years, successive theories have broadened the focus of victimology substantially from its earlier positivist emphasis on conventional crimes such as street crimes and house burglary. Marxist victimology included an analysis of victims of crimes by powerful business enterprises and the state. Left and right realists focused on intra-class crime perpetrated by the working class. Left realism encouraged the use of the crime survey in order to show how crime was disproportionately suffered by people in the poorest communities. In addition to conventional crimes in run-down areas, right realists raised a concern with the perpetration of a wide range of minor crimes and ‘incivilities’ which reduce the quality of life of those who live in those neighbourhoods. Feminist scholars highlighted the victimisation of women and children, particularly in the domestic sphere. Furthermore,

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some writers have taken the debate beyond criminology and have argued in favour of a sociology of harm that has a broader remit than a concern with victims of crime. Critical victimology has synthesised insights from feminist theory and left realism, arguing for a focus on victims’ lived realities within the context of the material conditions generated by patriarchy and capitalism (Mawby and Walklate, 1994, p. 21). Its emphasis on the importance of harnessing victims’ agency by developing strategies for change, such as the recognition of victims’ rights, constitutes the theoretical framework for the arguments put forward in the second part of this book.

Questions for further discussion

• • • • •

What are the shortcomings of victim typologies? How has left realism contributed to the development of victimology? What insights about the nature of victimisation may be derived from critical race feminism? Is it possible for a theorist to fully understand victims’ lived realities? Should victimology broaden its terms of reference to include a study of victims of social harm rather than crime?

Chapter 3

Victimisation

Introduction The main focus of this chapter is the empirical measurement of victimisation in England and Wales. Victimisation may be divided into two types, namely primary and secondary victimisation. Primary victimisation, which will be discussed in the first part of this chapter, refers to victims’ experiences of the crimes committed against them. In order to address these experiences fully, the chapter documents the extent of crime, the incidence of repeat victimisation, the impact of crime upon victims, and the fear of crime. Secondary victimisation, which is the subject of the second part of the chapter, refers to the treatment of victims by criminal justice agencies, such as the police, the Crown Prosecution Service and the courts. Research reveals that socially unequal groups, including women, minority ethnic communities, LGBT persons and the elderly, are more likely to experience both primary and secondary victimisation. In view of the fact that specific chapters are devoted to an analysis of the victimisation experienced by these groups (Chapters 4, 5 and 6 respectively), their experiences will not be addressed in this chapter. For present purposes, the analysis is restricted to primary and secondary victimisation experienced by victims generally. This analysis draws mainly on the findings of victim surveys. The victim survey is the most widely used research tool to determine the extent of victimisation and who are most likely to be victims. Despite the criticisms of positivism that were made in Chapter 2, a strength of positivism is that it is concerned with measuring the extent of crime and identifying the social characteristics linked with typical crime victims. Survey techniques have been used by researchers writing from several different perspectives to explore the experiences of victims. Victims have also been interviewed using structured, semistructured or unstructured qualitative techniques and all of these methods have been used in relation to various types of crime and by researchers approaching their work from a range of perspectives. This chapter will accordingly also draw, where relevant, on findings from such qualitative research.

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The extent of victimisation National crime victim surveys National crime surveys have become a favoured tool to measure crime and the experience of crime in many liberal democratic societies. There are several factors that contribute to their increasing use. One is the unreliability of official crime statistics based on crimes reported to the police by the public. There are many reasons why members of the public do not report crimes committed against them to the police, including fear of victimisation at the hands of the perpetrator, a sense that the crime is too trivial to report, a belief that there is little that the police can do, embarrassment on the part of vulnerable victims, such as sexual assault and rape victims (Matheson and Summerfield, 2001), and fear of secondary victimisation by criminal justice agencies. Consequently, commentators on crime statistics refer to the ‘hidden’ or ‘dark figure’ of crime (Coleman and Moynihan, 1996). A second reason why police-derived crime statistics have been questioned is the practice of under-recording techniques, known as ‘cuffing’ in the police culture, which enables the police to record incidents as ‘non-crimes’ or otherwise hide them (Davies, 1999). Furthermore, labelling theorists criticised crime statistics in the 1960s because they contended that crime is a ‘social construct’, based upon the actions of law-makers, law enforcers, criminals and victims. They argued that ‘deviance’ and ‘crime’ are not properties which are intrinsic to a particular act but definitions or ‘labels’ given at particular periods of time within particular cultures (Becker, 1963). Consequently, it was argued that the crime statistics represented the actions of law enforcement agencies as much as the actual levels of crime. This critique of the crime statistics stimulated the development of other sources of information about crime such as qualitative research, victim surveys, offender self-report studies and data from agencies other than the police as well as research into hidden crimes such as drug-taking, ‘fiddling’ at work, corporate crime and domestic violence (Maguire, 2002, p. 334). The concern with escalating crime rates and the need to find a way of measuring crime that overcame the limitations in the crime statistics described above led to the use of victim surveys. The US government funded national and local surveys from 1972 onwards. In Britain, a survey was carried out in three areas of London in the early 1970s (Sparks, Genn and Dodd, 1977, cited in Maguire, 2002, p. 349) and the first British Crime Survey was published by the Home Office in 1983 (Hough and Mayhew, 1983). This was followed by further ‘sweeps’ (as they are often called) in 1984, 1988, 1992, 1994, 1996, 1998 and 2000. From 2001 onwards these surveys were conducted annually based on a sample of 40,000 respondents, distributed across all police force areas. The results are ‘grossed up’ (Maguire, 2002, p. 349) to provide a total figure of crime for the year which can be accepted as more accurate than the crimes known to the police, as it is believed that more of the ‘dark figure’ of unreported and

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unrecorded crime will have been captured by the survey. Crime surveys have also been established in Scotland and Northern Ireland. As Maguire points out, the sample for the first three surveys was collected from the Electoral Register, whilst, since 1992, the sample has been taken from the Postcode Address File as it was thought that the former significantly underrepresented young people, the unemployed, minority ethnic groups and people living in rented accommodation (2002, p. 349). Samples are constructed to represent all private households in England and Wales and all individuals aged 16 and over living in them. Respondents are asked whether they, or anyone living in their household, have been victims of certain crimes in the last 12 months. In addition to recalling the instances when they have been victims of crime, interviewees are asked to complete further sections of the survey devoted to eliciting their views on a variety of law and order topics. Finally, all those aged 16 to 59 years are asked to complete questionnaires directly onto a computer (the screen of which cannot be seen by the interviewer) on sensitive topics such as their use of illicit drugs or their experience of domestic violence (Maguire, 2002, p. 350). The BCS has documented a successive decline in the total amount of crime and reductions in most types of crime since a peak in 1995. National surveys also contain questions about a wide range of other issues related to crime and victimisation, such as why offences are not reported, fear of crime and attitudes to the criminal justice system. Variations in levels of reporting crime between types of incident as well as the psychological, physical and financial effects of crime have been investigated. Surveys have also been used to identify factors that affect the risk of being a victim (Spalek, 2006, p. 49). The national crime survey for 1997 showed that people aged over 60 experience the least risk of crime victimisation whilst those between 16 and 29 are the most likely to be victims of violence and theft. Sexual and domestic offences are mostly committed against women (see Chapter 4), while men are more likely to be victims of street crime (Mirrlees-Black et al., 1997, cited in Spalek, 2006, p. 49). Answers from unemployed respondents reveal that this group is more vulnerable to victimisation. The BCS also shows that Pakistanis and Bangladeshis are more likely to be victims of household crime and of racially motivated attacks compared with other ethnic groups (Spalek, 2006, p. 49; see Chapter 5). The BCS covering 2005/6 showed that there were approximately 10.9 million crimes against adults living in private households. Crime recorded in the BCS has declined by 44 per cent since a peak in 1995. Domestic burglary has declined by 59 per cent, vehicle crime by 60 per cent and violent crime by 43 per cent (Walker et al., 2006, p. 1). The national crime survey provides valuable information concerning which groups are most at risk of a range of crimes. In the year prior to interview in 2005/6, the risk of violent crime for all groups was 3.4 per cent. Young men aged 16 to 24 were most at risk of being a victim of violent crime, with 12.6 per cent having experienced a violent crime in the year prior to their interview ( Jansson et al., 2006, pp. 61, 74). Older age groups have

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a lower risk of violent crime, with a rate of 5.5 per cent of men aged 24 to 34 declining to 0.3 per cent for men aged 75 and over. Women are exposed to a lower risk of violent crime, with a rate of 7.0 per cent for those aged 16 to 24, 2.8 per cent for women aged 25 to 34 and 0.4 per cent for women aged 75 and over. Jansson et al. categorised patterns of violence in relation to the type of association between the victim and the offender. Thus, they showed that 2,420,000, or a little over a third, of violent incidents reported in the 2005/6 survey were between strangers, whilst another third involved acquaintances. Fifteen per cent of violent incidents occurred in the domestic context and 16 per cent were muggings (2006, p. 73). Men and women have a different experience of violence so that 80 per cent of victims of domestic violence were women and 77 per cent of victims of stranger violence were men. Men are more likely to be victims of stranger violence (45 per cent of violent incidents against men compared with 21 per cent against women). Domestic violence is more commonly experienced by women (31 per cent of the violent incidents experienced by women) compared with only 5 per cent of incidents of violence experienced by men (Jansson et al., 2006, p. 74; see Chapter 4). Hoare and Cotton (2006) analysed the BCS findings on property crime and showed that there is a variety of risk factors relating to burglary, vehicle-related crime, theft and vandalism. They showed that households that lacked security measures such as deadlocks on doors and locks on windows were almost ten times more likely to have been burgled (19.4 per cent compared with 2.1 per cent). The age of the ‘household reference person’ (HRP) is also a risk factor, with 5.9 per cent of households with an HRP aged 16 to 24 years experiencing burglary. Households with an income of less than £5,000 per year or which are left unoccupied for five or more hours per day are more likely to experience a burglary. Households in owner-occupied properties are at less risk of burglary (1.8 per cent) compared with ‘social renters’ (4.2 per cent). People who have lived in a property for less than a year are exposed to a higher risk (4.5 per cent) compared with those who have inhabited the same residence for one to two years (2.9 per cent). Households in areas with a perceived high level of physical disorder were more often subjected to burglary (5.3 per cent) compared with those areas that are rated at a low level (2.2 per cent) (Hoare and Cotton, 2006, p. 88). In their analysis of vehicle-related theft Hoare and Cotton showed that 7.5 per cent of respondents had experienced vehicle-related theft in the previous 12 months. Young HRP households, especially those aged 16 to 24 years, were more vulnerable to vehicle-related theft, with 10.6 per cent having experienced such crime. Households which own three or more vehicles were more likely to be victimised (12.6 per cent), whilst 11.8 per cent of those living in areas which had a perceived high level of physical disorder were more likely to suffer this type of crime. Type of housing also increased the risk of vehicle-related theft, with 10.8 per cent of people living in flats and 9.7 per cent of people living in terraced houses experiencing vehicle-related theft (2006, p. 91).

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Hoare and Cotton also refer to factors associated with risks of theft from the person and vandalism. According to the BCS 2005/6, 1.2 per cent of adults had been a victim of theft from the person, with 1.5 per cent of women and 0.9 per cent of men being victims. The 16 to 24 age group were most at risk, with 2.3 per cent of men and 3.3 per cent of women having experienced theft from the person. The risk of victimisation is linked to lifestyle, with those who had visited a pub or wine bar on at least three occasions per week in the previous month having a rate of victimisation of 1.65 per cent compared with 1 per cent for those who had not frequented pubs or wine bars in the previous month. Single people were found to be more likely to have been a victim (2.4 per cent) (2006, p. 94). Vandalism, in some form, was experienced by 7.6 per cent of all households, with the rate for vehicle vandalism being 6.6 per cent and vandalism to the home and property being 2.8 per cent. The risk of becoming a victim of any of these types of vandalism varies by household characteristics and types of areas. Consequently, for all vandalism, households in terraced properties were at a higher risk (10.2 per cent) whilst households in detached houses had the lowest risk (6.3 per cent). With regard to vehicle vandalism risks varied according to employment status, with the highest risk group being unemployed HRPs (10.1 per cent). Older householders suffered less victimisation (3.6 per cent) for HRPs over 60, as did owner occupiers (6.0 per cent) compared with social renters (9.5 per cent) (2006, p. 97). There have been several methodological criticisms of national victim surveys, mainly centring upon the omission of many crimes or concerning the difficulties of obtaining accurate and truthful replies from participants. The BCS focuses on conventional criminal offences, such as theft of/from vehicles, theft from the person, bicycle theft, vandalism to private property, burglary from a dwelling and assault/wounding, which may be described as offences ‘against private individuals and households which are committed by strangers’ (Maguire, 2002, p. 354). Spalek (2006, p. 52) points out that victimless crimes such as drug possession are often omitted from national surveys and that the BCS excludes fraud, drug dealing and murder. Radical criminologists, such as Tombs (2000), contend that questions about health and safety at work or other corporate deviance should be included. The BCS also has limitations relating to the sampling of households as this excludes potential victims whose living arrangements differ from the norm, such as people who are homeless or in institutional care, including disabled people and the elderly (see Chapter 6). Spalek refers to the problem that some people in the sample may be difficult to contact at home or may refuse to participate. Such people may have higher victimisation rates which would be excluded from the survey (Spalek, 2006, p. 53). The BCS concentrates on people over 16 and so fails to collect data on children who are subject to victimisation. In addition, surveys based upon individuals within households cannot obtain information regarding other types of victim, such as business and commercial interests, local authorities, government agencies or religious organisations (Zedner, 2002, p. 431).

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Further methodological difficulties have been identified. For instance, the requirement for respondents to remember crimes that they have suffered within a specific time period may lead to errors. Infrequent and untypical incidents of crime are more likely to be remembered, but where someone is a victim of repeated offences (e.g. repeated racially motivated crime or domestic violence), it may be difficult to recall all the specific instances of violence or the victim may not be sure whether or not they have suffered a ‘crime’. Sexual victimisation and domestic violence are sensitive topics to research, and laptop computers, which cannot be seen by the interviewer, have been used for self-completion sections of the survey. This has resulted in an increase of positive responses in replies from women relating to sexual victimisation, from 0.7 per cent to 7.5 per cent. Other questions have been administered using computer-assisted self-interviewing (CASI) on domestic violence and stalking (Spalek, 2006, p. 55). Local crime surveys National crime surveys tend to make broad generalisations about the extent of crime and the frequency with which people may statistically become victims. In the first BCS, Hough and Mayhew (1984) argued that a person over 16 could statistically be expected to suffer a robbery every 500 years and an injury from an assault once every century. A problem with this approach is that it does not give accurate information about levels of crime in deprived urban areas. This shortcoming led to the Home Office financing a local crime survey in Nottingham (Farrington and Dowds, 1985, cited in Spalek, 2006, p. 56), which demonstrated that people living in deprived areas were at high risk of victimisation. The proponents of left realism (see Chapter 2) made a significant contribution to the development of local crime surveys in the 1980s. They contended that crime is a significant problem for people living in deprived areas, especially because much crime is intra-class rather than inter-class, i.e. it comprises offending by the working class against their own communities rather than against the propertied middle class. They wanted to provide research, and a theoretical understanding of crime, which would underpin social policies designed to address structural issues such as social inequality and relative deprivation in opposition to right realism’s concern with increasing punishment as a way to reduce crime. In the 1980s right realist theories were favoured by New Right politicians who were championing stronger punishments as a deterrent to crime. The role of the victim alongside the role of informal social control, the criminal and the police were all part of the left realist square of crime (see Chapter 2). It accordingly followed that left realists would emphasise local victim surveys as a source of knowledge about the unequal distribution of victimisation geographically and by class, age, gender and race. Local victim surveys, they argued, could also help formulate local crime-control policies as

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these surveys could be used to discover what local residents believed to be the most serious issues to be addressed. In addition, the surveys could be used to elicit their views on how these issues might be controlled, including locally preferred policing strategies and the role of other relevant agencies, such as local authorities, social services, housing departments and victim support schemes in responding to crime (Jones et al., 1986). Several local crime surveys, in areas of poverty, were funded by left-wing Labour councils and carried out by left realist criminologists in the 1980s (Kinsey, 1984; Jones et al., 1986). The first Islington Crime Survey ( Jones et al., 1986) showed that people living in deprived areas suffered far more crime than national averages suggested, a third of households having been affected by burglary, robbery or sexual assault within the previous 12 months. The survey also found that young white females in the area were 29 times more likely to be assaulted than white females over 45 years (Jones et al., 1986, cited in Maguire, 2002, p. 355). A further issue discussed was the fear of crime. Left realists argued that the reality of crime could be understood only if sub-groups were considered rather than whole groups, such as all men or women, or all members of particular minority ethnic communities. The Islington Crime Survey attempted to research offences which remain largely hidden in the BCS, through less restrictive wording of questions and more sensitive approaches by interviewers who were given special training. The first Islington survey found higher levels of sexual assault than those reported in the BCS and ‘over one-fifth of reported assaults were classified as domestic’ (Maguire, 2002, p. 356). It included questions on the responses to crime by the police and the ‘public evaluation and expectations of police performance’ as well as the local population’s views on appropriate penalties for several offences. The survey also included questions on harassment (e.g. being followed, stared at or shouted at in the street), inter-racial incidents and heroin use. It was argued that local victim surveys could provide the necessary empirical base to cover the whole range of the criminal process: the pattern of victimisation, the impact of crime, the police response to the victim and the offender, the public’s wishes regarding the ideal police response as well as the public’s expectations regarding appropriate penalties for a range of offences ( Jones et al., 1986, p. 5). A problem with household-based victim surveys is that they have ignored victimisation related to crimes committed by businesses. A survey by Pearce (1990), carried out as part of the second Islington Crime Survey, included questions on workplace safety, unlawful trading practices and the victimisation of housing tenants. Pearce found that, of those who had worked in the previous 12 months, 5 per cent had been injured in a workplace accident. According to Pearce, ‘this translates into an accident rate per 100,000 workers nearly 30 times the national average’ (1990, p. 20). In his view, this high rate was probably attributable to the numbers of people in the area who worked in small garment manufacturing or construction companies which have a reputation for poor safety practices and, especially in the latter, for high accident rates.

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The survey also found that 3 per cent borrowed money or arranged credit with a money lender other than a bank, building society or credit card company and that these transactions included 11 separate violations of the Consumer Credit Act 1974. Nine per cent of respondents believed that they had been given misleading information about goods or services; 19 per cent stated that they had been deliberately overcharged for goods and services; and 24 per cent believed that goods or services they had paid for had been defective. Between about one-half and three-quarters of these respondents had complained and had received some kind of compensation. Of those who paid rent for their accommodation, 3 per cent complained of criminal activities by landlords such as harassment, illegal evictions and unlawfully keeping deposits. Most complaints against landlords were for their failure to effect essential repairs – 25 per cent of local authority tenants, 22 per cent of tenants of private landlords and 13 per cent of tenants of housing co-ops made complaints about the failure to effect repairs and, although this was not necessarily a criminal offence, Pearce pointed out this made life more difficult for people in Islington. Assessing the degree of criminal victimisation within his sample of 889 people, Pearce found that 28 per cent had been victims of street crime, 3 per cent had been victims of sexual assault and 39 per cent had been victims of commercial crime, with 54 per cent being victims of at least one offence within these categories. In addition to establishing the high degree of criminal victimisation in Islington, the study demonstrated that victimisation of individuals as consumers, tenants and workers was more extensive than street crimes, though the victims of these types of commercial crimes could often obtain redress of some kind. Although local victim surveys addressed many of the shortcomings of national surveys by generating more accurate data from local geographical areas and specific social groups, they have nonetheless attracted criticism from feminist scholars. It has been contended that even local surveys cannot reveal the full extent of women’s lived realities of victimisation. The survey method is based on the measurement of individual incidents of victimisation. Women do not experience victimisation in this way, but rather as a ‘continuum of violence’, which cannot be documented accurately by surveys (Spalek, 2006, p. 58; see Chapter 4). Likewise, minority ethnic communities experience an ‘ongoing pattern of harassment and violence’ (Phillips and Sampson, 1998, pp. 126–7; see Chapter 5) that is not revealed by local surveys (see also Genn, 1998, cited in Maguire, 2002, p. 357; Bowling, 1998). Victims of corporate crime Victimisation caused by corporate crime has been marginalised or overlooked by most surveys. This section attempts to rectify this lacuna by highlighting studies that have been concerned to document its incidence and extent. Sutherland’s pioneering work in which he defined white-collar crime as ‘a crime committed by a person of respectability and high social status in the course of his

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occupation’ (1949, p. 9) did not have a wide or immediate impact on criminologists. The development of radical criminology in the 1970s stimulated the study of the field, though radical writers were particularly concerned to focus on crimes and other socially harmful practices committed by people who occupy high positions in corporations, such as managers and senior executives, in the pursuit of profits for their businesses (Box, 1983; Slapper and Tombs, 1999, p. 16). Tombs’ fourfold typology of types of offences committed by corporations (2005, p. 269) gives an indication of the range and potential enormity of victimisation due to corporate crime. The first type Tombs refers to consists of financial crimes, such as ‘illegal share dealings, mergers, and takeovers; various forms of tax evasion; bribery; and other forms of illegal accounting’ (Tombs, 2005, p. 269). Particularly well-known examples are the case of the multinational energy company Enron, which collapsed after the firm’s financial irregularities became known, and the activities of the directors of Guinness, who (in the 1980s) indulged in the illegal purchase of their own company shares to maintain their value in the context of a takeover bid. Tombs’ second type of corporate crime comprises offences committed against consumers, such as illegal sales practices, the sale of unfit or improperly tested goods, false or illegal labelling of products, and company conspiracies to fix prices or to carve up markets between themselves. An example would be the mis-selling of endowment policies by British financial organisations in the 1980s and 1990s, which have been estimated to have cost home-buyers £2 billion (Inman, 2006; see Chapter 2). A third category of corporate crime refers to crimes arising out of the employment relationship, including the violation of race and sex discrimination laws, the contravention of employment law or wage laws, the infringement of laws relating to rights to organise and take industrial action, and the violation of laws regulating health and safety at work. Tombs’ final category of corporate offences refers to those against the environment, including the illegal pollution of air, water or land and the dumping of hazardous waste. The above discussion of categories of corporate crime, and some of the examples provided, suggests that crimes committed by corporations incur economic costs for governments, consumers, taxpayers, employees and other businesses. They also produce physical costs in the form of death, injury and illness, especially from unsafe working conditions, polluted environments and unsafe products. In addition, they generate social costs as they exacerbate social inequalities. A disproportionate amount of harm is suffered by those on low pay as they are more likely to work in more dangerous and polluted environments and are unable to afford to move away from polluted residential areas. A further cost is the undermining of trust in the companies on which people rely for food, products and services (Tombs, 2005, p. 270). It is extremely difficult to calculate the economic costs of corporate crime, partly because so much of it goes unrecorded. Victims rarely report it because

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they are not aware of it; the police are rarely concerned with it because the public do not complain to them of such crimes; and the regulatory agencies, such as the Factory Inspectorate, concentrate on helping employers to conform to the law rather than initiating prosecutions for its breach (Carson, 1971). Whilst the calculation of the costs of crime is very difficult, there is evidence that the costs of corporate crime are greatly in excess of the costs of conventional crime. Bright (1997, cited in Slapper and Tombs, 1999, p. 61) estimated the annual cost of burglary (the crime seen as most central to the crime problem) at £1 billion and yet the cost of 48 serious fraud cases being pursued by the Serious Fraud Office in 1994 was estimated at £5 billion (Slapper and Tombs, 1999, p. 61). The illegal mis-selling of private pensions by pensions companies, which involved ‘a sum of up to £11 billion involving 2.4 million victims’ (Tombs, 2005, p. 270), also indicates the relative seriousness of corporate crime. It has already been stated that measuring the extent of corporate crime is complex because victims are often unaware of their status, corporate crimes are often not prosecuted through the criminal courts and victim surveys usually do not investigate this type of crime. The following example is a good illustration of how corporate crime is diverted from the criminal justice system, and thus from the crime statistics. Seven retailers which sold England and Manchester United replica football shirts between April 2000 and August 2001 for a fixed price of £40, when they would have retailed for around £20, were fined £16 million by the Office of Fair Trading (Brady, 2007). Not having been dealt with by the police and the CPS, these offences would not be reflected in crime statistics. The reality that business offences such as these are prosecuted by administrative agencies outside the criminal justice system renders it necessary for researchers to monitor a host of such administrative procedures and to find other possible sources of information, such as the annual reports of regulatory agencies, the financial columns of newspapers, official reports into scandals, accidents and disasters, case studies by researchers into various companies or industries and disclosures from ‘whistle-blowers’. Incidents of pollution have the potential to make everyone victims of corporate crime. In addition, some forms of financial crime may have far-reaching effects, for instance offences involving tax evasion reduce the income of the Treasury and rebound onto the provision of services, whether national or local. Crimes committed by corporations against other corporations may indirectly have sweeping consequences. Whilst they may have an immediate effect on the value of shares held by individual shareholders, there may be adverse repercussions for those who have an indirect interest in those shares, including people who pay into pension schemes or who have invested in popular forms of saving such as ISAs. Where there are clearly identifiable victims, such as employees who are injured at work due to infringements of health and safety laws, these crimes impact upon their families and the health services as well as possibly creating a need for the victim to claim welfare benefits which have to be provided out of welfare contributions paid by members of the community.

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There is evidence that environmental risks, which are often seen as the most generalised across the population, ‘are borne to a disproportionate extent by those experiencing other forms of social and economic inequality’ (Slapper and Tombs, 1999, p. 82). In particular, Slapper and Tombs refer to evidence that areas in the US where lower-paid people live are often exposed to greater degrees of environmental pollution and there is no reason to believe that environmental risks will be different in Europe. As consumers, women have been particularly vulnerable to unsafe contraceptive products, such as the IUD device, Dalkon Shield, which was marketed in the US despite the producer’s directors being aware of the product’s risks. In the US the device is known to have injured 235,000 women and killed 33, causing it to be withdrawn from the US market. Later it was ‘dumped’ on third world countries, where regulations are weaker, through USAID (Whyte, 2007, p. 457). There is also a gender, ethnic and class dimension to the experience of accidents at work (Wrench, 1996, Lee and Wrench, 1980, cited in Slapper and Tombs, 1999, p. 83). Corporate crime, then, is more damaging to society than conventional crime and it is a cost borne disproportionately by poorer and less socially advantaged groups. A final point made by those who research corporate crime is that it is not just a product of a few ‘bad apples’ within the world of business but an activity which is endemic within a competitive business environment (Box, 1983; Tombs, 2005, p. 270; see Chapter 7 for a discussion of the omission of victims of corporate crime from criminal justice policy).

Repeat victimisation Thus far the chapter has considered the extent of individual incidents of victimisation. However, there is evidence demonstrating a high rate of repeat victimisation (also known as ‘revictimisation’), which includes being victimised at least twice. Pease and Farrell showed that the 1992 BCS revealed an unequal distribution of crime, with 4.3 per cent of victims being victimised five or more times in a single year, and that this minority of victims suffered 43.5 per cent of all reported crime (Farrell and Pease, 1993, p. 7). From four sweeps of the BCS between 1982 and 1992, Pease (1998) calculated that repeat victimisation led to a mere 2 per cent of respondents having suffered 41 per cent of property crime and only 1 per cent having suffered personal crimes. Robinson (1998) reported that 1.2 per cent of all residences in the area he studied suffered 29 per cent of all burglaries reported to the police in the period 1992–4. Unequal social groups are particularly susceptible to repeat victimisation. Research has shown high levels of repeat victimisation on account of, amongst other things, gender and race (Williams, 1999; see Chapters 4 and 5). However, not all victims of repeat victimisation are necessarily powerless. The 1993 survey of commercial premises in England and Wales documented the prevalence of crimes such as employee theft and fraud (despite the likelihood that these crimes would be under-estimated). Like the more conventional crimes discussed

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above, the survey showed that some firms experienced a disproportionate amount of crime, with 3 per cent of retailers accounting for more than half the amount of crime recorded against the sector and 8 per cent of manufacturers accounting for two-thirds of the crime in their sector (Mirrlees-Black and Ross, 1995, cited in Carrabine et al., 2004, p. 17). Farrell and Pease (1993) and Pease (1998) have argued that the statistical analysis of repeat victimisation can be used in the development of policies to prevent crime, based upon the argument that crime victimisation is a ‘good predictor of swift future victimisation’ (Pease, 1998, p. 2).

The impact of victimisation As might be expected, the impact of crime is greater for more serious crimes, so the qualitative research that has been carried out on victims of burglary, violence, rape and child sexual abuse highlights severe psychological, emotional, physical and economic consequences for victims of these crimes. In a study of burglary in Britain, Maguire and Bennett (1982, pp. 126–31, cited in Zedner, 2002) found that 83 per cent experienced ‘strong reactions’ after discovering a burglary in their home. The worst aspect of burglary was loss or damage for 32 per cent of the respondents, but 41 per cent referred to feelings of intrusion and 19 per cent experienced emotional upset. Mawby (2001) refers to the emotional reaction of victims of burglary in England, Poland and Hungary in which anger (75 per cent) was the most common reaction, followed by shock (44 per cent), fear (35 per cent), insomnia (27 per cent) and tears (17 per cent). Financial loss, as would be expected, is generally experienced by victims of burglary of the dwelling. Mawby and Walklate’s study of burglary in Plymouth and Salford (1997, cited in Mawby 2001, p. 41) reported that 96 per cent of their sample of reported burglaries suffered financial loss due to theft and/or damage. The median value of items stolen was £717, with 18 per cent incurring losses of £2,000 or more and 7 per cent experiencing a loss of less than £50. Electronic goods were taken in 67 per cent of burglaries, with jewellery (41 per cent), cash (38 per cent), credit cards and saving books (17 per cent) accounting for other losses. Although burglars may try to reduce the seriousness of their crimes by reference to the insured status of their victims, Mawby and Walklate (1997) found that only 69 per cent of their samples in Salford and Plymouth were insured and only 29 per cent were fully recompensed by their insurers. This is mainly because policyholders often have to bear the first £50, for example, of any loss. People who are at most risk of burglary – the poor, inner-city dwellers, the single, the unemployed and people in privately rented accommodation – are the least likely to be insured as they cannot afford the premiums. So those who are most at risk of burglary are the least protected against the full financial cost of this type of crime (Mawby, 2001, p. 42). Another effect of burglary is the loss of goods such as jewellery or watches which are of sentimental value. Other

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non-financial effects documented by Mawby (2001, pp. 45–7) were a fear that the burglar might return and a sense that the quality of life had been damaged so that one had to be more concerned with security and was thus less relaxed within one’s own home. Respondents also experienced a concern about why their home had been targeted and were fearful that the burglar was someone who knew them and was aware when they were away from home. A common response was a feeling that one’s privacy had been invaded and that a stranger had handled objects or read private papers. Some respondents also felt a sense of injustice that their hard-earned possessions had been taken from them by someone who had not had to work for them. The longitudinal study by Shapland et al. of 276 victims of violent crime, including physical assaults, sexual assaults and robberies, showed that only 9 per cent stated that they had been completely free of effects since the incident. At the interview conducted after the outcome of the case (two years after the offence), 75 per cent were still referring to unexpected effects such as aches and pains or the inhibition of movement long after the immediate injuries had healed (1985, p. 98). There were various financial costs incurred in the crimes of violence, including damage to clothes and dentures. Sixty-one people lost earnings due to time off work. Most frequent losses were £20–£50, though some losses were over £200 at 1979–80 levels. Further costs such as loss of income or travel expenses were incurred when victims had to take time off from work and travel to the police station to give a statement or attend court (1985, p. 104). Physical, social and emotional effects were experienced together and can be difficult to disentangle. Shapland et al. found that [o]verall, a majority of victims suffered some kind of emotional effect, which often led to changes in their behaviour and social lives. These were usually long-lasting (remaining over periods of months or even years) and commonly took the form of nervousness, anxiety and worry, particularly when alone or out of the house. (Shapland et al., 1985, p. 106) They also found that sexual assault victims had the highest level of effects at the first interview and that these effects were the most likely to persist (1985, p. 100). Studies of rape victims and victims of child sexual abuse have discovered that many victims experience persistent effects for many years, including emotional disturbance, sleeping and eating disorders, feelings of insecurity, low self-esteem and problems with interpersonal relationships (Zedner, 2002 p. 429; Stanko, 1985, p. 46; see Chapter 4). Victims from other socially unequal groups, such as minority ethnic communities, LGBT persons and elderly persons, also experience the psychological, physical and financial impacts of victimisation more profoundly than other victims (see Chapters 5 and 6).

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Fear of crime Victim surveys go beyond recording victimisation and are a tool for surveying attitudes to crime and the services provided by the criminal justice system. One issue that emerged from victim surveys carried out in the 1980s was the extensive nature of the fear of crime so that Zedner (2002, p. 425) portrays discussion of it as ‘a new area of criminological enquiry’. People’s fear of crime has generally been discussed in terms of their fears for their personal safety rather than perceptions of crimes against their property. Methodological problems exist as asking questions in surveys may make people more aware of the fear of crime and render them more willing to admit to the possession of such fears. Young working-class men who go out late at night and drink in public houses are most at risk but they do not admit to a fear for their personal safety. Women and the elderly express the most fear, despite their lifestyle putting them at the least risk of physical attack. As was seen above (Jones et al., 1986), left realists wished to demonstrate that in some localities, because of the actual incidence of crime, fear of crime was not necessarily irrational despite the apparent converse relationship between victimisation and the fear of crime. Women and the elderly who have a fear of crime might be reflecting the hidden violence that they suffer in the domestic context as well as their greater vulnerability because the physical, psychological and economic costs of crime may be greater for them compared with more affluent and physically stronger people (Zedner, 2002, p. 426; see Chapters 4 and 6). Minority ethnic groups have a greater fear of racial attack than do whites, with African-Caribbean individuals showing less concern than Asians (see Chapter 5). A fear of crime is also associated with ‘personal experiences of crime, living in inner city areas, perceived levels of disorder, lack of neighbourhood cohesion and racial and sectarian tensions’ (Zedner, 2002, p. 427). The physical environment, such as poor street lighting and boarded-up buildings, may also increase fear. Youths loitering on street corners or the presence of drunks in the street might add to a sense of hostility and fear (Crawford et al., 1990, cited in Zedner, 2000, p. 427). Fear of crime may be increased by the nature of crime news reporting as well as by the introduction into the environment of measures to control crime as they give out a signal that the area must have a lot of crime to warrant such measures. The BCS now measures attitudes towards crime, such as perceptions of changes in crime levels and worry about crime. According to the BCS, following a peak in 1995, crime has been declining. Its results document a fall of 44 per cent, which represents 8.4 million fewer crimes. Domestic burglary fell by 59 per cent, vehicle crime has been reduced by 60 per cent and violent crime declined by 43 per cent. The risk of becoming a victim of crime has fallen from 40 per cent in 1995 to 23 per cent, according to the BCS exercise in 2005/6 (Walker et al., 2006, p. 1). This BCS estimate of a decline in crime has not prevented many respondents

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from believing that the crime rate has risen. Patterson and Thorpe (2006, p. 33) found that 63 per cent of people thought that the crime rate had risen in the country as a whole, whilst 42 per cent thought that crime in their local area had increased. They also provide evidence that respondents’ perceptions of increases in national crime rates are influenced by the newspapers they read. Readers of national tabloids were much more likely to think that crime rates had increased ‘a lot’ (39 per cent) compared with 19 per cent of readers of broadsheets (Patterson and Thorpe, 2006, p. 33). Women showed a greater propensity (34 per cent) than men (25 per cent) to think that the crime rate across the country had increased a lot in the previous two years. Perceptions of crime also vary with age. Forty-five per cent of women aged 65 to 74 years and 40 per cent of women over 75 years believed overall crime rates to have increased compared with 22 per cent of women aged 16 to 24 years. In addition, perceptions of the crime rate nationally vary by educational level, with 38 per cent of people who had no educational qualifications believing that the crime rate had risen compared with 21 per cent of those with higher education. High levels of worry about crime have been declining but there is still a gender bias in the experience of worry about crime. Women are more likely than men to worry about being a victim of burglary and violent crime. For each age group about twice as many women worry about violent crime compared with men. The gap was most evident with 32 per cent of women aged 16 to 24 years possessing high levels of worry compared with 12 per cent of men in the same age group. People from minority ethnic groups were more than twice as likely to have high levels of worry regarding burglary, crimes of violence and car crime compared with white groups. Readers of national tabloids were more likely to have high levels of worry about all three types of crime, compared with readers of national broadsheets (Patterson and Thorpe, 2006, p. 37).

Secondary victimisation In addition to the suffering meted out through being a crime victim there has been a growing awareness, since the 1980s, of the possibility of further suffering caused by the way in which the victim is treated within the criminal justice system. Insensitive questioning by the police, the failure to communicate information about what is happening in the victim’s case, delays, unexplained decisions by the prosecution to drop a case (Zedner, 2002, p. 436) and aggressive cross-examination in the court process have been recognised as causing the victim further suffering which amounts to secondary victimisation. Secondary victimisation is partly systemic, arising from traditional conceptions of the adversarial process and the role of the victim within it. Since the late eighteenth and early nineteenth centuries, the victim’s role has been transformed from prosecutor to Crown witness, as the state has assumed responsibility for the prosecution of offenders. As Dignan points out (2005, p. 64), crime

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came to be viewed as an offence against the state, as representative of society, rather than an offence against the individual victim. Prosecutions were conducted by the police and, after 1985, by the CPS, and the victim was largely excluded from participation in the trial and from having any input into the sentencing process. The adversarial trial, as conceived in common law jurisdictions such as the UK, excludes victims as it recognises only two parties, namely the prosecution and the defence, relegating victims to mere Crown witnesses or ‘evidentiary cannon fodder’ (Dignan, 2005, p. 64). The institutional culture of criminal justice agencies may also generate secondary victimisation by fostering insensitive attitudes to victims. A crimecontrol focus on ‘catching criminals’ or obtaining convictions, for instance, may cause the police or the CPS to overlook victims’ needs. Furthermore, prejudices and stereotypes based on race, gender and sexuality, amongst other things, may generate inappropriate responses from criminal justice agencies (see Chapters 4, 5 and 6). The exclusion of victims from the adversarial process, coupled with insensitive attitudes on the part of criminal justice agencies, led to victims feeling neglected or inappropriately treated by the police, the CPS and the courts. Police often did not inform or consult victims regarding decisions to arrest or grant bail to the suspect (Justice, 1998, pp. 35–6). The CPS did not consult victims concerning decisions whether or not to continue prosecutions and barristers acting for the CPS did not routinely introduce themselves to victims at court (Justice, 1998, p. 70). Many victims felt vulnerable in the court premises as separate waiting rooms were not provided to keep them away from the defendant or his/her supporters. Victims were also not given any explanation of the court process or the layout of the court. Furthermore, many victims experienced considerable delays due to adjournments of the proceedings (Justice, 1998, p. 61). A survey of magistrates’ courts and Crown Courts showed that there had been a significant improvement since 1986 in the provision of facilities but that there were still deficiencies regarding the provision of information and precautions against intimidation (Shapland and Bell, 1998). During the trial itself the English adversarial process involves a contest between the prosecution and the defence in which cross-examination is the primary weapon. Defence counsel resort to tactics under cross-examination designed to undermine the prosecution case or attack the credibility of the witness. This experience of cross-examination has been regarded as one of the more traumatic forms of secondary victimisation, particularly in rape trials (Soothill and Soothill, 1993; see Chapter 4). As victims are Crown witnesses, they are not parties to the case and accordingly have no right to a lawyer, who may be able to shield them from the worst effects of cross-examination (see Chapter 10). Furthermore, once victims have testified, they are required to leave the trial proceedings. Many victims complained that their testimony constituted their last involvement in the criminal process and that they received no information on the outcome of the case (Dignan, 2005, p. 64).

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In a survey of victims of interpersonal crime, Shapland et al. (1985) demonstrated that many victims were ill-informed about the criminal justice process and their possible access to state compensation. This study found that victims’ initial views of the criminal justice system’s response to their situation were positive but that they became more critical as their case progressed. A sense of secondary victimisation emerged with a perception that the police were unsympathetic in the early stages and in the later stages there was a sense of court appearances being threatening. Certain groups of victims experience more secondary victimisation than others. In addition to victims from socially unequal groups (see Chapters 4, 5 and 6), family members of homicide victims experience a high rate of secondary victimisation. They may be interviewed repeatedly by the police immediately after the homicide, which interrupts their grieving process, and may even be regarded as suspects (Williams, 1999, p. 55). Furthermore, they may have to hear details of the deceased’s private life at the trial, which may be hurtful and embarrassing (Williams, 1999, p. 54). Family members of offenders imprisoned for serious crimes have also reported secondary victimisation. The organisation Aftermath represents family members of anyone convicted of a serious offence and helps them to deal with complex reactions including trauma, the impact upon self-identity, stigmatisation and ostracism (Hogarth and Rock, 2000). Since the 1980s, but particularly from the 1990s onwards, the increasing recognition of the phenomenon of secondary victimisation has generated extensive reforms designed to improve victims’ experiences of the criminal justice system. The second part of this book comprises a detailed consideration of these reforms, as well as an analysis of further reforms that, it is contended, are necessary in order to ensure the successful elimination of secondary victimisation.

Conclusion This chapter has assessed victims’ experiences of primary and secondary victimisation, drawing on victim surveys as well as more qualitative research. It has provided an introduction to the nature, extent and impact of victimisation experienced by victims of conventional crime as well as their experiences of the criminal justice system. This introductory discussion provides a backdrop to the detailed analysis (in Chapters 4, 5 and 6) of primary and secondary victimisation experienced by victims from socially unequal groups, as well as the evaluation (in part 2) of reforms to the criminal justice process to improve the position of victims. The chapter has also highlighted the way in which victims of corporate crime have been marginalised in survey research. Chapter 7 complements this discussion by pointing to the ways in which the state responses to victimisation have ignored the experiences of victims of corporate crime.

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Questions for further discussion

• • • • • •

Discuss the shortcomings of national victim surveys. To what extent have local victim surveys been successful in overcoming these shortcomings? What kind of research would most effectively reveal the experiences of victims of corporate crime? Explain the phenomenon of repeat victimisation. What impact does crime have on victims? What is secondary victimisation and what causes it?

Chapter 4

Women victims – domestic terror and female victimisation

Introduction The biggest domestic threat of terrorism is not on our doorstep but inside, beyond it. The nature of this terror, which is sometimes experienced on a daily basis, ranges from the psychological and the verbal to the physical, the sexual and even the homicidal. Its ramifications extend to the non-victimised population through the fear of crime, restrictions on personal life and lifestyle choices. Its effects on victims are wide-ranging, often long-lasting and may re-emerge years after the event, being triggered by other traumatic events (Resick and Nishith, 1997). This terror is that which confronts large numbers of women, and some men, in the private setting of their homes and other familiar surroundings. This chapter examines the primary and secondary victimisation of the victims of this terror. The first part of the chapter analyses the extent of rape and sexual assault and the effects of these offences on victims. It also considers secondary victimisation experienced by victims at the hands of criminal justice agencies. In order to demonstrate that rape is not experienced by women only, the chapter includes a discussion of the increasingly documented incidence of male rape. The second part of the chapter assesses the nature and extent of domestic violence, which is suffered mostly by women but also by men, as well as women’s experiences of secondary victimisation and the effectiveness of criminal justice responses.

Rape and sexual assault The extent of rape and sexual assault It has been estimated by one Home Office report that the police come to know of about 15 per cent of rapes that actually occur (Walby and Allen, 2004, p. 97). The prevalence of rape tends to be measured in two time periods, namely rapes that occurred during the respondent’s lifetime and rapes that occurred within a more limited period, such as the previous year. Victim surveys also tend to discuss rape in two distinct age groups: those aged below 16 and those aged

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16 and above. Due to the considerably under-reported nature of rape, official criminal statistics on rape are highly unrepresentative (see below for the reasons for under-reporting). It is therefore surprising, as Kelly et al. (2005) note, that there has been only one study specifically designed to examine the extent of unreported rape (Painter, 1991) and no broader dedicated national sample of rape in the UK. It is important to bear these limitations in mind when considering the findings of the British Crime Survey. The statistics from the 2002 BCS reveal a female prevalence of lifetime rape since the age of 16 of 4.9 per cent and of some form of sexual victimisation since that age of 9.7 per cent (Myhill and Allen, 2002, p. 17). These figures also show that 0.4 per cent of women were raped and 0.9 per cent were sexually victimised in the 12 months prior to the questionnaire (2002, p. 18). If these figures are rounded up to the total population of England and Wales, they would indicate that there would have been approximately 61,000 such victims in the previous year (2002, p. 19). The biggest risk factor is that of age, with teenagers above the age of 16 being most likely to be victimised but with the next age group of women (20 to 24 years) experiencing rates of victimisation that are almost as high (2002, p. 21). Other important factors associated with a high risk of victimisation include earning a low income, being a single woman, especially a divorcee, living in an inner-city or urban area, and living in local authority housing (2002, pp. 22–5). Students, whilst more likely to have reported an instance of sexual victimisation than any other occupational group, were the least likely to have reported an incident of rape to the survey (2002, p. 26). Contrary to the widespread myth that rape is perpetrated by strangers, BCS findings demonstrate that female victims most often know their male assailants. The BCS found that only 8 per cent of rapes were committed by strangers and, by comparison, 45 per cent were committed by partners of the victim (2002, p. 30). Strangers make up 23 per cent of the perpetrators of sexual assault compared with the figure of 28 per cent for acquaintances (2002, p. 67). What these figures clearly demonstrate is that women are far more at risk of sex crimes from men they know than from strangers. The analysis of repeat victimisation provides further evidence of the lack of veracity of the myth of stranger responsibility. The BCS found that 41 per cent of those who were sexually victimised experienced two or more occurrences and that this repetition was much higher where they had been victimised by somebody they knew, such as a partner (62 per cent) or ex-partner (52 per cent), compared with a stranger (20 per cent) (2002, p. 31). Lastly, 74 per cent of rape incidents involved the use of physical force or violence, with 37 per cent resulting in injury. Of the injured, 10 per cent suffered cuts or broken bones, nearly a third suffered extensive bruising and 52 per cent were slightly injured, having sustained a black eye or lesser bruising, for instance (2002, p. 33). These crimes may also have a spatial dimension. Rapes reported to the

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Metropolitan Police in London account for a fifth of all such crime in England and Wales, perhaps a little over its proportionate population size (Ruparel, 2004, p. 1). In addition, there are higher rates of rape in the city centre compared with receding levels radiating outwards from the city, which is possibly partially explained by higher levels of social interaction in central London (2004, p. 3). Findings based on official statistics also reveal that the most common form of rape is acquaintance rape. Stranger assailants feature more prominently in officially recorded statistics than in the BCS, but this only serves to confirm that rape by intimates is under-reported (2004, p. 1). The impact on victims The effects of rape and sexual assault are long term and not solely confined to the immediate aftermath of the crime. Some of the greatest damage to victims is done at the psychological level. The two psychological disorders most associated with victims of sex crimes are post-traumatic stress disorder (PTSD) and major depression (Resick and Nishith, 1997, p. 31). PTSD has been used to describe the trauma reactions observed in such victims for the last two decades. Rape victims suffer these trauma reactions more than victims of other crimes such as robbery (1997, p. 31). The clinical symptoms persist for months, with almost half of the victims meeting the criteria of PTSD three months after the crime. The perception of a threat to life and the level of brutality of the assault are viewed as amongst the greatest PTSD predictors (1997, p. 37). The second psychological effect is that of major depression, which is found in significant proportions – in about 40 per cent of cases – and at levels of moderate to severe depression one month after the assault (1997, p. 32). This depression reportedly diminishes by around the three-month mark but some researchers report differences persisting for longer than a year and lasting into the second decade post-crime (1997, p. 32). Other reactions, such as exhaustion and restlessness, follow the victimisation, and a clinically significant fear occurs within the first fortnight of the attack (1997, p. 29). There are other reported problems with social adjustment, sexual functioning and self-esteem. Disruptions to social adjustment in family life and work may last up to four months. The effects on sexual functioning vary depending on the frequency of sexual activity before the crime. Women with higher pre-crime levels of sexual activity recover more quickly than those women who engaged in sexual activity infrequently before the assault (1997, p. 30). Disassociation, which is a disruption of consciousness resulting in difficulties in cognitive, emotional and physical integration, can also occur in consequence of the victimisation (1997, p. 37). In addition, there are less definitive responses to the trauma that concern notions of self-belief. Reactions vary from the reinforcement of negative conceptions of self to the destruction of positive outlooks on the world and everyone in it. Issues such as personal safety, intimacy and trust in others also arise (1997, p. 38).

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There are therefore many factors that compound the initial trauma of victimisation and make recovery more complex and of a much longer duration than virtually all other crimes. The lasting effects of trauma are felt in relationships, the family, the workplace, and the avoidance of things done before the crime, such as going out after dark. It is these effects that therapy procedures in the treatment of rape-related trauma attempt to address by reducing anxiety and changing patterns of avoidance, dysfunction or depression. Rape and sexual assault may also result in financial costs for victims, such as health costs, and for the wider society, such as lost output and health service costs. Dubourg et al. (2005) have looked at health outcomes in terms of the estimated loss of quality-adjusted life years (QALYs) and have converted this into monetary sums (2005, p. 35). These QALYs, used in health economics, are calculated by a period of years multiplied by a health-related index of the quality of life. Thus, full health for one year can be represented by a score of one and death by a score of zero, with states not as good as full health scoring somewhere between. Over ten years where five years are spent at the level of 0.7 and five years at 0.3, the QALY will be 5.0 (5 × 0.7 + 5 × 0.3 = 5.0), or, more importantly, may be seen as a loss of five years in full health out of a possible ten. The cost of health states in the case of rape ranges from psychological states already mentioned, such as PTSD, depression and anxiety, to others that have not been covered, such as alcohol and drug abuse, eating disorders and suicide. Physical health effects include abortion (in 2.5 per cent of cases), gonorrhoea, chlamydial infection, bacterial vaginosis, minor or severe bruising and broken bones (2005, p. 34). Once these losses are converted into monetary sums the emotional and physical costs of each rape have been estimated at £61,440 for 2003/4 (2005, p. 36). The lost output of victims who have to take time off work was calculated by Dubourg (2005, p. 37) as the number of days off multiplied by £51 (that figure being the estimated daily output, gross domestic product (GDP) per head, in the UK). The lost output for each rape, even though certain geographical and gender issues in equal pay were not taken into account, was estimated to be £9,965, compared with £3,362 for sexual assault that did not include rape (2005, p. 40). Lastly there is the estimated cost of treating each health state the victim experiences within the NHS. Health costs arising from rape include the costs of counselling (per hour), genito-urinary medicine, limb fracture, sprains and cuts, the use of ambulances and, in a minority of cases, termination of pregnancy. The estimates of health service costs for each rape are £2,082 (2005, p. 43). The total cost of the impact of rape on victims, including health costs, lost output and health service costs for each rape, is £73,487 – three and a half times that of other sexual assaults and nearly 20 times that of robbery (2005, p. 44). These figures demonstrate the seriousness of rape and sexual assault in that they generate much greater and more widespread costs to victims and society in general than is the case with other crimes.

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Secondary victimisation Victims’ experiences of victimisation and its aftermath do not begin and end with the crime and its impact, but are often compounded by the secondary victimisation that accompanies their involvement with criminal justice agencies. Secondary victimisation has been defined as the victim-blaming attitudes, reactions, behaviours and practices by service providers that result in further violation of victims’ rights and/or additional trauma (Orth, 2002, p. 314; Campbell and Raja, 2005b, p. 97). This section assesses the way in which the rate of attrition in rape cases, as well as rape victims’ experiences in court, causes secondary victimisation. However, prior to a discussion of these issues, it is necessary to emphasise that rape and sexual assault are extensively under-reported, and to document briefly the reasons for such under-reporting. The primary reasons for the high rate of under-reporting appear to be a mixture of fear and disbelief – fear of retaliation or intimidation, fear of the family’s reaction, and disbelief, fuelled by the reactions of the police and others, that the event itself constituted a rape (see Kelly et al., 2005, p. 31; Walby and Allen, 2004, p. 102). Significantly, many victims evince a general distrust of the police and a lack of confidence in their willingness or ability to respond effectively to incidents of rape (Temkin, 2002, pp. 17–18). Those victims who do report appear to do so for one or more of four reasons: protection (personal), prevention (of rape of other victims), justice and the moral conviction that it is ‘the right thing to do’ (Kelly et al., 2005, p. 31). The rate of attrition Despite the extensive under-reporting of rape and sexual assault, recent records do show that reporting levels are increasing. However, there seems to be no matching increase in convictions. The static level of convictions, coupled with rising levels of reporting, has led to a startling decrease in convictions as a percentage of complaints of rape. Lea et al. (2003), for example, draw attention to the fact that in 1985 the conviction rate for reported rape cases was 24 per cent; by 1997 it had fallen to just 9 per cent (2003, p. 583) and by 2002 it had fallen to 5.6 per cent (Kelly et al., 2005, p. 25). In 1977 one in three reported rapes resulted in a conviction (32 per cent), whereas by 2002 the corresponding ratio was 1:18 (2005, p. 25). This deteriorating conviction rate has been described in at least one Home Office report as being indicative of an increasing ‘justice gap’ or ‘chasm’ (2005, p. 1), which has been attributed largely to the attrition rate of rape cases. This process of attrition has been described as involving anywhere between four and seven main points where rape cases drop out of the criminal justice system. These stages, which primarily involve the police and, to a lesser degree, the Crown Prosecution Service, include cases that are ‘no crimed’, cases where

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‘no further action’ (NFA) is taken by the police, cases where the CPS decides not to prosecute, and cases that go to trial and fail in the courts (see Lea et al., 2003, pp. 583–4). According to Kelly (2005), these categories may be subdivided further into the following stages: no evidence of assault, false allegations, lack of evidence (including no prospect of conviction and no offender identified) and victim withdrawal (including declining to complete a statement or a forensic examination). For the purposes of this chapter the stages will be combined using Kelly’s lesser categories as sub-categories of the broader stages identified by Lea et al. (2003). The first major attrition point in the criminal justice process is where the police decide to ‘no crime’ a reported incident. The two main reasons for not recording a reported rape are lack of evidence of an assault and a belief that the allegation is false. Kelly et al. (2005) contend that police ‘no criming’ should conform to a much more limited set of criteria (namely, where the offence occurred in another jurisdiction, where credible evidence indicates no offence took place or where the offence was recorded in error) than it does and that, instead, it has become a dumping ground for cases (2005, p. 38). Reasons that are included in the first sub-category of no evidence of assault include the complainant being unable to communicate properly either through distress or drink or having an appearance that at first glance leads to a suspicion of rape, such as damaged clothing, but that later turns out to be unfounded (2005, p. 46). The second major reason for ‘no criming’, false allegation, is controversial. In some cases the statistical representation and level of false allegations varies widely and is contested. Lea et al. (2003) found that where police gave a reason for the current status of the case, 20 per cent came under the category of false allegation (Lea et al., 2003, p. 593) whereas Kelly et al. found much lower levels of around 8 per cent in a larger sample. The reasons for these allegedly false allegations were divided into two main categories of ‘revenge’ and ‘cover-up’. The first category includes instances where the complainant wanted to force the issue of marriage, suspected infidelity within the relationship or used the allegation against a neighbour she disliked. ‘Cover up’ includes cases where allegations may have been brought to mask the complainant’s own infidelity (Lea et al., 2003, p. 593; Kelly et al., 2005, p. 48). Two factors affecting the rate of false allegations must be borne in mind. First, research has shown that police officers view any inconsistency in the complainant’s evidence as a strong indication of a false allegation and often provide uncertain criteria for such a designation (Lea et al., 2003, p. 594; Kelly et al., 2005, p. 50). Cases should be described in this way only when there is strong evidence or an admission by the complainant. Where the complainant has been through a harrowing and traumatic event, some confusion about details is to be expected, and police scepticism that leads to ‘no criming’ may be due to gendered attitudes. Second, there is no evidence to support the notion that there is a higher rate of false allegations in crimes of rape than in any other crime (Lea et al., 2003, p. 597).

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The second major attrition point occurs where the police take no further action and includes cases that are thought to have insufficient evidence or where the victim withdraws the complaint. Cases of NFA represent the largest group of cases in the attrition process, ranging from 55 per cent (Kelly et al., 2005) to 61 per cent (Lea et al., 2003) depending on the study. Cases of insufficient or lack of evidence include instances where no offender was identified, where there was no prospect of conviction and where the complainant gave an unclear or confused account of events. This group of cases included a limited number of women with mental health problems and those who inhibited their memory with intoxicants (2005, p. 54). Another important factor is victim intimidation (Lea et al., 2003, p. 596). A significant number of women who are economically reliant on the perpetrators may be susceptible to a combination of threats and promises from their abusive partners, doubly so where children are involved. This, coupled with a belief that the chances of a conviction are minimal, often results in the police deciding that no further action will be taken. The combination of these factors demonstrates that gender-based violence maintains existing inequalities in power and that the criminal justice system may be undermined by poor functioning (2003, p. 596). Early victim withdrawal most often centres on the refusal to make a statement or a formal complaint or undergo a forensic examination (Kelly et al., 2005, p. 59). Refusals to make a statement or to submit to a forensic examination are often triggered by the absence of female officers and female doctors respectively (Kelly et al., 2005, p. 60). The way that the police conduct the initial interview appears to be significant, as research has shown that more victims decline to give statements or make complaints than undergo forensic examinations, which are particularly intrusive (2005, p. 62). That early victim withdrawal comprises the largest sub-category of attrition seems to demonstrate a general lack of confidence and faith in the police. Many complainants appear to conclude that the chances are slim that the criminal justice system will be willing or able to make good its promises. This reality points to the unlikelihood of the ‘justice gap’ being bridged in the near future. The third and statistically less important point of attrition occurs at the stage of CPS decisions whether or not to continue prosecutions. The CPS applies two tests to determine whether the case should proceed. They must first determine whether there is sufficient evidence for a reasonable prospect of conviction. If there is sufficient evidence, they must then decide whether a prosecution is in the public interest (CPS, 2004). Only those cases that pass both tests will proceed to trial. This point of attrition is less statistically significant than those discussed above, because, by the time cases reach the CPS, around 80 per cent of complaints have already been lost (Lea et al., 2003, p. 592; Kelly et al., 2005, p.70). Between 10 and 14 per cent of all reported cases make it to the trial stage. The conviction rate for rape, as opposed to a lesser charge, ranges from 5–7.4 per cent (Kelly et al., 2005, p. 71; Lea et al., 2003, p. 592) of all reported cases of rape.

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The bulk of the ‘justice gap’ may accordingly be ascribed to the police. Research has demonstrated that the police conduct deficient investigations, display gendered attitudes towards complainants and treat complainants insensitively, and that such police behaviour amounts to secondary victimisation (see Gregory and Lees, 1999). It has been contended that a cultural shift is needed within the police force from one of scepticism that is directed at the victim’s credibility to one which is centred on ‘enhanced evidence’ gathering (Kelly et al., 2005, p. 89) and building a better case rather than destroying and re-victimising already traumatised complainants (see Chapter 13 for a discussion of reforms to police and CPS practices regarding rape). The court process Secondary victimisation is associated not only with the police but also with the court process. Lees (1997) regards the rape trial as a process that produces a particular type of conformity (1997, p. 1). It constitutes a site of both contestation and control where the discourses of law, medicine and psychology are concentrated and deployed. She contends that the trial amounts to a second rape by the judiciary and the legal profession (1997, p. 54). She emphasises that the court’s focus on physical penetration shifts the terms of reference from the victim’s experience of male coercion to the contested issue of consent (1997, p. 60). This illustrates how power, in the Foucauldian sense, is deployed in court by means of legal discourses that regulate women’s experiences through definition and control women as ‘objects’ (1997, p. 73). Nowhere is this more clearly shown than in the ‘spectacle of degradation’ (1997, p. 73) involving the court’s focus on the victim’s body rather than on her testimony and experience of rape. Lees maintains that it is often the woman’s body that is on trial, not the perpetrator, and that this is a product of male discourse concerning sexuality. The victim is objectified by public discussion of intimate matters, such as how her body reacted during the rape. The manner in which the complainant is forced to describe the deeply personal parts of her body and the way it was assaulted constitutes a second ‘judicial rape’ (1997, p. 79). This degrading level of sexual detail is also portrayed as a type of rape-as-pornography (1997, p. 78). Not only is the woman’s body often used to discredit her character or testimony, but other factors may also taint her, while having no effect on the defendant. The consumption of alcohol and drugs may be perceived as signifying female promiscuity and consent. The connection between alcohol or drugs and victim-blaming is illustrated by Finch and Munro (2005), who conducted a set of simulated cases for focus groups where rape victims had taken alcohol and different drugs. Respondents took the view that such victims should bear some responsibility for the resultant intercourse (2005, p. 30). Some interviewees absolved the defendant of liability altogether, whereas others were unable to describe the conduct as rape (2005, p. 31). Even where the defendant

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had supplied the victim with alcohol, interviewees did not absolve the victim of all responsibility (2005, p. 31). The victim’s experience of cross-examination, which often draws on the above gendered conceptions of women’s sexuality and norms of appropriate feminine behaviour, has been regarded as the most traumatic aspect of the trial. Respondents in a 1996 Victim Support survey stated that cross-examination was ‘patronising’, ‘humiliating’, worse than the rape itself, and that they were ‘made to feel as if they were on trial’. Several respondents complained that defence barristers were aggressive, intimidating and asked unnecessary and intrusive questions about their friends and social life (Victim Support, 1996, cited in Ellison, 1998, p. 606). Lees documented cross-examination that was concerned to denigrate the complainant’s character in order to sway the jury: In more than half the cases where consent was an issue, questioning included whether the complainant was divorced, was an unmarried mother, had a habit of drinking with strangers or drank to excess. (Lees, 1996, cited in Ellison, 1998) Ellison has argued that, although such treatment of victims under crossexamination is partly due to the failure of presiding officers to restrict defence questioning, it is ultimately ‘rooted in the adversarial trial process’ (Ellison, 1998, p. 606). The English adversarial process, which is premised upon the stronger side winning the court-room battle, permits and, indeed, encourages cross-examination that aims to destroy the other side’s case by discrediting its witnesses. Victims of rape are accordingly caught in the cross-fire. Secondary victimisation in the court process is thus not only attributable to gendered attitudes on the part of court personnel, but is also systemic, being embedded within traditional conceptions of the adversarial process (see Chapters 9 and 10 for a discussion of recent reforms and suggestions for change to reduce secondary victimisation in court). Male rape The Criminal Justice and Public Order Act 1994, which came into effect in 1995, broadened the definition of rape by including non-consensual penetration of the anus and by recognizing that the victim of rape could be either male or female. It accordingly became possible to prosecute male rape as such, rather than as indecent assault, which had hitherto been the only available charge, and hence to give voice to the experiences of a group of victims that has been almost totally ignored (Lea et al., 2003, p. 587). Despite the change in the law, however, male rape is extensively underreported. Home Office official statistics over the last few years have put male rape levels at between 11–12 per cent (1,139 versus 8,187 for 2004/5 and 1,118 versus 8,729 for 2005/6) of total rapes reported in the UK (Home Office, 1996a).

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Mezey and King, in their sample of nearly 3,000 men, found that almost 3 per cent had experienced non-consensual sex as an adult (less than 1 per cent experienced anal penetration/rape), whilst 8 per cent of men reported having consented to sex with a person of five years their senior before the age of 16 years (King et al., 2000, p. 8). Whilst consensual sex between a male child and an older woman may not be regarded by many as sexual exploitation, such interaction may cause later social and psychological problems (2000, p. 4) and does raise the issue of female involvement in sexual exploitation. Perhaps of equal importance to the statistical finding of direct female involvement in sexual exploitation is the volume of the estimated number of male rapes in prison, particularly in the US. However, it must be borne in mind that, as the US has an extremely high prison population of around 2 million, this may be a statistically isolated or extreme case. Nonetheless, as regards the US, at least, the number of male rapes in prison potentially alters statistical and other perceptions of rape and of the gender of the typical rape victim. While it is very difficult to gain information on male rape in US prisons, reported estimates vary wildly from 60,000 rapes daily (Lees, 1997, p. 96) to 240,000 (compared with 144,000 female rapes) yearly (Lehrer, 2001, p. 24). If these estimates are anywhere near true they would have a significant impact on the conceptualisation of rape in the US and perhaps even further afield. Male rape is predominantly perpetrated by heterosexual men and, it has been argued, is not motivated by sexual gratification but, like female rape, by power, dominance and the enhancement of masculinity (King et al., 2000, p. 2; Lees, 1997, p. 95). In other respects, however, the experiences of male rape victims differ from those of their female counterparts. The meaning of rape for women often concerns their relationship with the perpetrator (Allen, 2002, p. 35). As was indicated above, most women are raped by acquaintances. For men, however, the method of the rape is more important because of the effects it has on their social identity and bodily autonomy (Allen, 2002, p. 35). Male rape poses a great challenge to masculine ideas of power and control (Allen, 2002, p. 36). Allen identifies four distinct forms that male rape may take, namely ‘overpower’ (where the victim is physically overpowered by a number of perpetrators with an unfair physical advantage), ‘over-ride’ (where sexual intimacy was agreed but anal penetration had not been consented to), ‘intimidation’ (where the threat was not physical but took another form, such as a threat of loss of employment or psychological coercion) and ‘entrapment’ (where the rape involved the use of drugs or praying on the mentally vulnerable) (2002, pp. 37–43). Allen contends that overpower, over-ride and entrapment can all be justified by the victim on the basis of traditional images of masculinity, such as the idea that it was an unfair contest, a ‘misunderstanding’, or drug induced. It is only intimidation that raises self-doubt where the victim may feel that he could have avoided victimisation as the incident did not involve physical force (2002, p. 42). The method of victimisation is not the only difference between male and

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female rape. The perpetrator will often attempt to arouse the victim physically and this may lead to an erection and ejaculation. This should not be misinterpreted as a sign of pleasure or consent as erections may result from feelings of anger or may be automatic due to the stimulation of the prostrate gland (Lees, 1997, p. 97). None of this changes the victim’s intense feelings of confusion and humiliation and may lead to a crisis of sexual identity (1997, p. 97). Another dimension of male rape, which is experienced by men in prison and is not shared by women, is the indignity of continually having to repay and ‘service’ the perpetrator (Knowles, 1999, p. 267). Victims may find themselves repeatedly violated, not necessarily by just one offender. Male rape in US prisons also has a racial dimension that is not evident in the case of women victims. Research suggests that racism is the primary factor in male prison rapes. Knowles draws attention to the fact that in many prisons African Americans predominantly rape white prisoners to a disproportionate extent (1999, p. 268). He states that ‘[t]his racial inequality may be the largest in any violent crime committed in the United States’ (1999, p. 268). He speculates that the reasons for such behaviour include exploiting and venting frustration on a population that most closely resembles the oppressor (1999, p. 277). The conception that male rape reinforces male domination (Lees, 1997, p. 91; see above) is challenged by studies that show that women are also perpetrators of non-consensual sex. The racial dimensions of male prison rape in the US also present difficulties for this conception. While such rape consists of the exercise of male domination, it has more to do with the humiliation of white men than with the subordination of women. The reality that some women sexually abuse men, and that some heterosexual men are raped by other men, ‘confronts our assumptions about what it is to be male and female’ (King et al., 2000, p. 12). Rumney has demonstrated that male rape victims experience secondary victimisation in the criminal justice process in a manner that is very similar to female victims. Like women, men report that the treatment meted out to them by the police and the courts is ‘worse than the offence itself’ (Rumney, 2001, p. 206). In addition, the rate of attrition for male rape is as high as the rate for female rape (Rumney, 2001, p. 206). Furthermore, gendered conceptions of masculinity contribute to victims’ experiences of secondary victimisation during the trial, particularly during cross-examination. Tactics used by defence counsel to undermine the victim’s credibility are similar to those that are used vis à vis female rape victims. Evidence of involuntary physical responses during the rape, for instance, is used to argue that the victim consented or, alternatively, that the defendant mistakenly believed that the victim consented (Rumney, 2001, p. 208). Evidence of the victim’s failure to resist or the lack of injuries is also used to contend that there was consent (Rumney, 2001, p. 208). In addition, defence counsel use evidence of victims’ sexual history to argue that they are gay and must thus have consented to the rape (Rumney, 2001, p. 209). Male victims’ experiences of

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secondary victimisation accordingly arise from patriarchal conceptions of masculinity that feminise male rape victims on account of the myth that ‘real men’ do not get raped. Like female victims, their experience of the court process is also exacerbated by the systemic requirements of the English adversarial process that encourage aggressive cross-examination.

Domestic violence The nature and extent of domestic violence Domestic violence has been defined broadly to include not only homicide and physical assaults but also verbal, emotional, psychological and sexual abuse as well as economic or financial deprivation (Garner and Fagan, 1997, p. 54). Figures from a recent British Crime Survey reveal that of those aged 16 to 59 years just over one in four women (26 per cent) and one in six men (17 per cent) have been the victim of at least one instance of domestic abuse since the age of 16 (Walby and Allen, 2004, p. 12). When the statistics are further defined and restricted to the use of physical force or threat thereof, the ratios fall to one in five (21 per cent) for women and one in ten (10 per cent) for men (2004, p. 12). Statistics for the prevalence of domestic violence 12 months prior to the interview, ‘in the last year’, reveal that 6 per cent of women and 5 per cent of men interviewed had been the victims of this type of crime (2004, p. 13). Young women aged 20 to 24 reported the highest levels of domestic violence: 28 per cent stated that they had been assaulted by a partner at some time and 34 per cent had been threatened or assaulted. It was estimated that there had been, in total, about 6.6 million incidents of domestic physical assaults in 1995 leading to injury in 2.9 million cases. It was also estimated that about 7 million frightening threats were made in the previous year (Mirrlees-Black, 1999, p. vii). Older women are also at risk of domestic violence. In a survey of nearly 1,000 urban senior female citizens over 55, those reporting being physically abused (1.52 per cent) or threatened with physical harm (2.63 per cent) totalled 4.15 per cent since the age of 55 (Zink et al., 2005, p. 886). The prevalence rose to 8.6 per cent of those women over 55 in a current relationship with rates of emotional or psychological abuse of 45.2 per cent since reaching 55, which is close to the rates of younger women (2005, pp. 886–7). High rates of victimisation have also been reported amongst those presenting themselves to psychiatric services in London. In a smaller sample of just under 200, lifetime prevalence levels of some form of abuse, including physical and emotional abuse, reached 40 per cent, with half-yearly levels of 16 per cent (Tham et al., 1995, p. 318). Almost one in four (24 per cent) were victims of domestic violence, with a 2.75: 1 female to male ratio, 25 per cent saying that the abuse that they suffered was related to their mental state (1995, p. 318). Recent research by Jansson et al. (2006) shows substantial differences between the numbers of men and women victims of domestic violence. The researchers

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found that 80 per cent of victims of domestic violence were women. In addition, more women experienced domestic violence (31 per cent of the violent incidents experienced by women) than men (only 5 per cent of incidents of violence experienced by men) (Jansson et al., 2006, p. 74). However, these findings were made in the context of a general study of violent crime, rather than a study that focused specifically on domestic violence (see below). While the findings from survey research are able to provide more reliable information about the extent of domestic violence than official statistics, it must be borne in mind that they do not always reflect the full extent of the ‘continuum of violence’ (Spalek, 2006, p. 58) that women experience. In addition, they do not capture women’s lived realities of domestic violence (see Chapter 2). Domestic violence against men: theoretical paradigm or paradox? Although more women than men experience domestic violence, men nonetheless experience significant levels of such violence. The increasing number of male victims poses an empirical challenge to feminist representations of domestic violence as male-on-female violence. This challenge is illustrated by the findings of a detailed, albeit somewhat dated, extrapolated report by Mirrlees-Black (1999), which, at the time of writing, was the most recent comprehensive empirical study of domestic violence. The report found that, whilst the lifetime experience of domestic violence of women between the ages of 16 and 59 was higher (23 per cent) than that of men (15 per cent), within the year prior to the survey men and women said they had been victims of an assault by a current or ex-partner to the same extent (4.2 per cent) (Mirrlees-Black, 1999, p. 20). Whilst female victims had a higher level of repeat/multiple victimisation, about half of females being assaulted three or more times as against a third of males, the average number of physical assaults was similar at 5.2 per cent for females and 5.0 per cent for males (1999, p. 21). Women were more likely to be injured (47 per cent versus 31 per cent), but this finding (1999, p. 37) must be tempered with other US research that suggests that this gendered divergence is lessened when physical size and strength are accounted for and that women may be more likely to seek medical attention than men who have sustained a similar level of injury, thus skewing the results (Felson and Cares, 2005, p. 1184; see below). Whilst the report did not think that men were equally the victims of domestic violence (1999, p. 31), it may be that men are less likely to report serious injury and acts of domestic violence than women. Grady has drawn attention to direct evidence of bias in the working assumptions of the police and the way in which traditional stereotypes of the female victim/male perpetrator influence police reaction at the scene and the incorrect coding of incidents. In addition, such stereotypes lead them to view male victims not as victims of serious crime but rather ‘as pathetic figures of fun’ who

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are, thus, disinclined to report their experiences of victimisation (Grady, 2002, p. 96). This feeds into official criminal statistics, which may explain some of the differences between official police statistics and self-reported levels and distributions of domestic violence. Importantly, this report illustrates that domestic violence is not exclusively perpetrated by men against women, and that women are also the perpetrators. American scholars have recently attempted to take account of the fact that domestic violence is perpetrated against both women and men. Johnson (2005) divided domestic violence into three categories, namely intimate terrorism, violent resistance and situational couple violence (2005, p. 1127). Intimate terrorism consists of one partner taking control of the other. Violent resistance is a possible response. As men are the primary perpetrators, the issue is certainly a gendered one (2005, p. 1126). Situational couple violence is more occasional and forms part of a specific disagreement or conflict rather than a general pattern of dominance. According to Johnson, this type of occasional violence is much more likely to be found in general population-based samples whereas empirical findings from hospitals, courts, police and specialist shelters are much more likely to provide high frequencies of intimate terrorism (2005, p. 1127). This bifurcation of domestic violence led Johnson to conclude that domestic violence policy ought to focus on extreme cases of domestic violence rather than on frequently non-violent aggressive behaviours, such as name-calling. This would meet the challenge to feminist theory posed by the increasing evidence of male victimisation by women, leaving domestic violence as essentially a gendered phenomenon (2005, p. 1129). Fergusson et al. (2005) take issue with Johnson’s approach as it has no empirical basis for its typological categories and owes much of its aegis to the desire to explain the gender paradox in domestic violence research (Fergusson et al., 2005, p. 1131). They contend that intimate terrorism is merely one end of the spectrum of domestic violence rather than victimisation that is qualitatively different from milder forms of violence (2005, p. 1132). They take the view that it would be a mistake to focus on the minority of extreme cases whilst ignoring the policy needs of the majority whose experiences fall below this level (2005, p. 1132). The seeming paradox can be resolved by the realisation that overall mean levels of domestic violence are similar, reflecting the findings from more general population level studies, whilst men may perpetrate proportionally higher frequencies of extreme violence (2005, p. 1132). Further US research by Felson and Cares (2005) asked whether the difference between male and female violence within relationships was a product of general gender differences in violence and serious crime. The authors considered factors such as frequency of assault, victim precipitation, nature of injury and fear of death or injury. They found that whilst men who assault their partners do so with high levels of frequency, women also assault family members at similarly high levels (2005, p. 1187). Interestingly, the study revealed no basis for the assertion that women commit violence in response to violence or the threat of

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violence from their male partners (2005, p. 1187). This finding corresponds to the finding of Fergusson et al. that women admitted to being the initial perpetrators of violence in 60 per cent of cases (Fergusson et al., 2005, p. 1134). Felson and Cares found that minor injuries were more likely to be produced by men but that they were not particularly more likely to produce severe injuries (2005, p. 1189). Physical size and strength may have been more important than gender as controlling factors. The major factor affecting fear of death or injury was whether the offender was armed or not. Thus victims may be more afraid of a large, powerful, unarmed man than a smaller woman but they are equally afraid of a woman bearing a weapon (2005, p. 1189). The authors concluded that, if male violence tends to be more serious than that perpetrated by females, it is because men in general engage in more serious violence than women (2005, p. 1193). The findings from recent American research, such as that discussed above, have led Fergusson et al. to adopt the view that a paradigm shift is now taking place in the area of domestic violence research, with an increasing number of well-designed population based studies reporting results that are inconsistent with feminist models of male perpetrators and female victims. (Fergusson et al., 2005, p. 1135) The impact on victims While there is some debate about whether the numbers of male and female victims of domestic violence are equalising in the UK, with the earlier comprehensive study by Mirrlees-Black (1999) documenting similar levels between men and women and the more recent, albeit much less detailed study by Jansson et al. showing much higher levels of domestic violence for women than men, the impact of such violence is much more severe for women than for men, due to their greater vulnerability (Goodey, 2005, p. 84). It also affects minority ethnic women differently, and often more severely, than white women (see below). The effects of domestic violence are frequently long term and include psychological/emotional, physical and financial effects. Domestic violence may cause victims extensive mental injury, which may impede their ability to work or support themselves. At least 50 per cent of women who access mental health services have been abused (Home Office, 2003b, p. 9). Psychological effects include changes in victims’ attitudes, such as the inability to trust men (Spalek, 2006, p. 69) and self-blame. Research has demonstrated that abused women frequently blame themselves for not leaving the abusive partner. Such self-blame is reinforced by the abuser blaming the victim as well as by cultural norms that place the responsibility on women to forge successful relationships (Spalek, 2006, p. 71). Victims also experience emotional effects, such as increased fear of their

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abusive partner, as well as fear of further abuse, which generates nervousness and anxiety (Spalek, 2006, p. 74). Extreme anger may also be experienced by women who have been severely abused (Spalek, 2006, p. 74). In addition, victims may alter their behaviour in order to reduce the chances of further violence. For instance, they may become very obedient to their partners or leave them temporarily or permanently (Spalek, 2006, p. 76). Women who have been subject to sexual abuse at the hands of their partners may refuse to embark on other relationships once they have left the abusive partner (Spalek, 2006, pp. 76–7). Victims may also engage in substance abuse to escape their traumatic experiences (Spalek, 2006, p. 77). Some abused women may commit suicide or attempt to do so and, in extreme cases, may kill their abusive partner (Spalek, 2006, p. 78). Several theories have been developed to explain the dynamics of domestic violence and its psychological impact on victims. Walker put forward the theory that abused women suffer from ‘battered woman syndrome’ (BWS). She contended that abusive relationships are characterised by a ‘cycle of violence’ that comprises three stages, which recur throughout the duration of the relationship (Davis and Snyman, 2005, p. 191). The first stage is the ‘tension-building’ stage, in which the victim tries to ensure that her partner’s surroundings are free of all known sources of irritation in order to keep him from losing his temper. The second stage, which inevitably follows, is the ‘explosion’ or ‘acute battering’ stage, in which the abuser commits serious physical and/or psychological violence (Davis and Snyman, 2005, pp. 191–2). The third stage comprises a period in which the abuser is contrite, apologises and seeks forgiveness from the victim, undertaking that the violence will not recur (Davis and Snyman, 2005, p. 192). However, the cycle is inevitably repeated. Victims living in this ‘cycle of violence’ internalise feelings of shame, guilt and self-blame, coupled with hope that the abuse will not recur, which is fuelled by the third stage. Such emotions, as well as a belief that there is no viable alternative, generate a sense of ‘learned helplessness’ on the part of the victim that prevents her from leaving the relationship (Wolhuter, 1996, p. 152). Walker’s theory is open to criticism. It fails to take account of the broader structural underpinnings of domestic violence, focusing solely on the internal psyche of the victim (Wolhuter, 1996, p. 152). It also fails to accommodate the experiences of male victims of domestic violence. Furthermore, the notion of ‘battered women’ is essentialist, as it assumes that all women’s experiences of domestic violence are the same, regardless of race, culture and religion, amongst other things (Hoyle, 2007, p. 153; see Chapter 2). The theory of traumatic bonding is similar to Walker’s theory, but is not premised on the existence of a cycle of violence. In terms of this theory, traumatic bonding occurs in relationships in which there is an inequality of power and one of the partners loses self-esteem due to frequent abuse. In consequence, she or he views the abusive partner as ‘all-powerful’ and feels unable to live without her/him (Davis and Snyman, 2005, p. 192). Although the theory of

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traumatic bonding is more amenable to the explanation of both male and female experiences of domestic violence than Walker’s theory, it nonetheless emphasises the psychology of domestic violence at the expense of broader structural factors. Separation assault theory seeks to explain why victims remain in abusive relationships by highlighting the fact that, as many abusers perpetrate extreme violence if the victim tries to leave, victims are afraid to do so. This focus on the more objective reality of the threat of extreme violence reveals the underlying rationality of victims’ decisions to remain in abusive relationships. However, the theory does not discount the internal psychological mechanisms adverted to in the above theories, regarding them as co-causal in victims’ decisions to remain (Davis and Snyman, 2005, p. 192). Despite the fact that separation assault theory entails a partial shift from an emphasis on the victim’s psyche to the abuser’s responsibility for ‘trapping’ the victim, it nevertheless remains embedded in a paradigm that ignores broader structural factors. In addition to psychological/emotional effects, victims suffer physical effects that range from severe injuries, such as broken bones, to more minor assaults, such as bruising (see above). In extreme cases, they may be killed or sustain lifethreatening injury. Victims may also suffer financial losses. Those who leave their partners as well as their homes may experience extreme deprivation due to the loss of their partner’s income. Child care costs may be incurred by victims who have to work to support themselves and their children (Spalek, 2006, p. 78). Furthermore, many victims become homeless as a consequence of leaving their abusive partner. Approximately 16 per cent of cases of homelessness every year are due to domestic violence (Home Office, 2003b, p. 9). Minority ethnic women Although the figures show that domestic violence levels differ little according to ethnicity (Parmar et al., 2005, p. 1), minority ethnic women’s experiences of the impact of domestic violence are frequently more severe than those of their white counterparts, due to the fact that it is compounded by other factors, such as culture, religion and race (see Chapter 2). Research conducted by Mama into black women’s experiences found that ‘tradition’ or ‘religion’ was used by men to justify their abuse. Women who were too ‘western’ and thus did not conform to traditional or religious conceptions of their gendered roles as wives and mothers were at greater risk of domestic violence (Spalek, 2006, p. 86). Mama argued that the fact that black women are frequently assaulted by men who rely on them economically casts doubt on the accuracy of white feminist accounts that ascribe domestic violence to women’s economic dependence on men, amongst other things (Spalek, 2006, p. 87). It has also been contended that black women may not report their abusive partners because they regard informing the police as ‘a betrayal of community values’ and may not leave because of adherence to traditional notions of the value of family (Spalek, 2006, p. 87).

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South Asian women also experience domestic violence within a cultural context that differs from that of white women (see Chapter 2). Married women are regarded as the guardians of the family honour (izzat), which primarily involves male honour, and as the transmitters of religion and culture (Bhopal, 1997, pp. 64–5). As such, they bear the responsibility for the success of their marriages. Domestic violence is evidence of a failed marriage, which brings shame on the family and destroys the family honour (Parmar et al., p. 4). Women victims are thus constrained to keep domestic violence private (Gill, 2004, p. 474). Informing the authorities exposes women to the risk of serious punishment or even death (Chana, 2005, p. 29). Over and above the cultural context that increases the risk of domestic violence and keeps them from seeking assistance, minority ethnic women also face institutional racism that impedes their access to criminal justice agencies and other services and exacerbates their sense of marginalisation (Parmar et al., pp. 3, 6). Furthermore, they may have been victims of racial violence and harassment that compounds their vulnerability (Parmar et al., p. 6). Many immigrant women suffer from additional constraints due to their uncertain immigration status and their concomitant fear of losing the right to remain in the UK. Such women are frequently threatened by their husbands and families with deportation if they report the abuse (Parmar et al., p. 4). Language barriers and lack of knowledge about the way of life in the UK also contribute to their vulnerability. Gendered conceptions of appropriate feminine behaviour accordingly intersect with culture, religion, race and nationality, amongst other things, in a way that significantly impedes minority ethnic women’s freedom to report domestic violence. In consequence, instances of such violence are subject to a high level of under-reporting (Home Office, 2003b, p. 55; see Chapter 13 for a discussion of the inadequacy of criminal justice responses to minority ethnic victims of domestic violence). Secondary victimisation In the same way as victims of rape and sexual assault, domestic violence victims not only experience victimisation due to the crime itself but may also experience secondary victimisation in their interactions with criminal justice agencies, such as the police, the CPS and the courts. Responses of the police and the CPS In order to address criticisms that they failed to respond adequately to domestic violence on account of gendered attitudes that such violence is a ‘domestic’ or ‘family’ affair (Cretney and Davis, 1997, p. 147), the police have introduced a pro-arrest policy in domestic violence cases. The development of pro-arrest policies has been traced to the introduction of a mandatory arrest policy in Minneapolis (see, for example, Garner and Fagan, 1997). Amidst fears that the

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perceived weakness of police responses to domestic violence was actually encouraging such crime, research showing that domestic violence could be deterred by arrest paved the way for the institution of mandatory arrest laws in some US states (Felson et al., 2005, p. 563). Although the UK has not favoured mandatory arrest, it has nonetheless introduced pro-arrest policies nationally (see Chapter 13). In order to determine whether pro-arrest policies are an appropriate police response, it is first necessary to examine the reasons why domestic violence victims initiate contact with the police and, second, to consider whether arrest is an effective deterrent to further domestic violence. Using data from the US National Crime Victimisation Survey (NCVS), Felson et al. (2002) found that even though the victim is more likely to report violence from a stranger than someone they know outside the family circle, they are more likely to call the police for self-protection from attack from family members than from strangers (2002, p. 633). Whilst there is evidence that victims are more likely to protect partners and family members who attack them than strangers, the strong incentive of self-protection, where the victim and attending police officers perceive events as serious or more serious, results in a similar propensity to call the authorities for acts of partner violence or stranger violence (2002, p. 640). In terms of motivation, fear is more important for reporting and self-protection from partners than for non-reporting because of reprisal (2002, p. 642). Women, because they are less likely to think it is a trivial or private matter and have a stronger desire for protection, are more likely to contact the police (2002, p. 640). However, this finding does not apply to minority ethnic women, many of whom are constrained by culture and tradition to keep domestic violence from the authorities (see above). Hoyle and Sanders (2000), in their study of domestic violence victims in the Thames Valley Police area, which operates a pro-arrest policy, analysed why women report domestic violence. They found that, of the 65 women they interviewed, over half called the police because they wanted the offender arrested (Hoyle and Sanders, 2000, p. 22). A large minority of interviewees did not want to initiate the criminal process and even the majority that wanted the police to use their powers of arrest did not want this to be followed by prosecution (2000, p.22). Most women wanted some interruption from the aggression, which would provide a catalyst for the achievement of their main goal of ending the relationship (2000, p. 22). Only a minority of interviewees sought retribution through arrest. This raises serious questions surrounding pro-arrest policy, which is primarily geared to obtaining prosecutions, as this may not be the primary concern of those most affected. The authors concluded that such arrest policies may work in isolation but that they have a better chance of success when paired with action by the victim and that the greatest factor contributing to the cessation of violence tends to be the action of the victim in ending the relationship (2000, p. 27). Furthermore, the actual effect of arrest on domestic violence perpetration is

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still unclear. The study by Felson et al. (2005) in the US using statistics from the NCVS casts doubt on the assumption that arrest assists in redefining the act as a criminal one and in stigmatising offenders, particularly those with strong stakes in community conformity, while being less able to deter those with weaker social bonds (2005, p. 567). Felson et al. used three variables, namely, where the incident was reported and the police made an arrest, where the incident was reported but no arrest was made, and where the incident was not reported to police, measured against injury sustained (minor, moderate and severe) (2005, p. 572). Perhaps surprisingly, they found a strong statistical case that whilst reporting had a significant deterrent effect on the repetition of domestic violence, there was little evidence of a similar effect for arrest, with women just as likely to re-offend as men (2005, p. 577). The research thus provides evidence that questions the deterrent effect of arrest. In addition, it found no support for the idea that arrest has a greater impact on those perceived as stronger societal conformists (2005, p. 580). The rate of attrition in domestic violence cases remains high despite the introduction of pro-arrest policies. In her research of three command areas in the Northumbria Constabulary, Hester (2005) found high rates of attrition similar to those discussed above regarding rape. The general pattern of attrition revealed by this research was drawn from 869 incidents of violence in the home over the three-month period studied (2005, p. 81). From this total 26 per cent of incidents (222) resulted in arrest, 7 per cent resulted in a charge being brought (27 per cent of arrestees, n = 60), 4 per cent were convicted (14 per cent of those arrested, n = 31) and 0.5 per cent (or 13 per cent of convicted, n = 4) received a custodial sentence (2005, p. 81). Arrest and conviction rates vary across studies but as this research illustrates, conviction rates are no higher and may even be lower than those for rape. Hester contends that attrition centres around three main areas. The first point of attrition occurs where the victim does not pursue the case (perhaps for reasons already mentioned above) and drops out of the process (2005, p. 82). Victims may decide to do this for a number of reasons, such as not receiving enough support from criminal justice agencies to proceed or reconciling with their partner, rebuilding the relationship, and therefore not providing a statement to the police (2005, p. 82). Another reason for the rate of attrition highlighted by Hester was the variance in police practice. Only one of the three area commands studied managed cases by pursuing criminal charges. North Northumberland usually combined arrest with later release, therefore not taking cases through the criminal process, whilst South Tyneside’s policy resembled a public order approach relying on charges of breach of the peace (2005, p. 83). This last tactic was seen by the police as an alternative to be used where victims did not want the perpetrator charged (2005, p. 83). Thus attrition may vary within a force area because of the differing policing tactics used and because of the type of victims encountered and the differing police reactions to them. It therefore appears that the attrition rate, albeit due to police decisions not

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to arrest or charge suspects, or to charge them with minor public order offences, is not necessarily a consequence of gendered attitudes to domestic violence victims. As Hoyle and Sanders (2000) indicate, most women victims do not want to initiate the formal criminal process and the rate of attrition may therefore be a response that accords with victims’ wishes rather than an indicator of secondary victimisation. Multi-agency initiatives, including the police, which focus on empowering women by assisting them to terminate abusive relationships may serve a better purpose than arrest (Hoyle and Sanders, 2000, p. 30; see Chapter 13). As regards those cases that are referred to the CPS by the police, the third point of attrition occurs at the stage of the CPS decision whether or not to continue prosecutions. Prosecutors suggested that victims’ decisions to reconcile with the abuser and to retract their statements were often major factors in case attrition. Hester revealed that prosecutors were much more cautious in cases where the victim and perpetrator remained in a relationship (2005, p. 84). Indeed, those that were actually prosecuted tended to be the same chronic offenders, 70 per cent of whom had already been reported, recorded and arrested by police (2005, p. 84). There was thus little evidence of the inclusion of new offenders. Related to this was the fact that photographic evidence at the scene, whilst clearly a factor likely to facilitate a successful conviction, was rarely collected despite the fact that a digital camera was available for this purpose (2005, p. 86). Such enhanced evidence gathering seems to have been the exception rather than the rule in police practice. The unavailability of such evidence often resulted in cases being dropped by the CPS (2005, p. 86). In cases where the CPS did decide to continue prosecutions, Cretney and Davis (1997) found that prosecutors frequently reduced charges from s 47 offences (assault occasioning actual bodily harm) to s 39 offences (common assault and battery). The primary reason for such charge reduction was the fact that s 39 offences must be heard in the magistrates’ court (Cretney and Davis, 1997, p. 148). Camiss has found that prosecutors in mode of trial hearings ‘disproportionately request that the magistrates retain jurisdiction’, which results in victims’ interests being overlooked (Camiss, 2006, p. 705). Prosecutors justified their preference for the magistrates’ court by considerations such as the saving of time and money and the greater prospect of convictions. In addition, they adverted to the fact that judges ‘dislike cases which stem from the murky circumstances of “private” relationships’ and may disapprove of prosecutors bringing such cases to the Crown Court (Cretney and Davis, 1997, pp. 148–9). In consequence, 94 per cent of domestic violence cases in Cretney and Davis’ study were heard in the magistrates court. Victims reported experiencing these charge reductions as having trivialised or ‘devalued’ their experiences of domestic violence (Cretney and Davis, 1997, p. 149). The practice of charge reduction thus generates secondary victimisation (see Chapter 13 for a discussion of reforms to police and CPS policy).

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The court process Domestic violence victims who testify in court are subjected to a discourse that distorts and trivialises their experiences. Women in Cretney and Davis’ study reported that the prosecutor had not explained the full incident to the court but had merely put forward an outline of the events. Defence counsel had adopted one of two strategies to minimise the violence. The first was to ‘paint a picture of restored domestic harmony’ and thereby to imply that the violence was a thing of the past. The second strategy was to undermine the victim’s credibility by suggesting that she made the allegations out of revenge, jealousy or drunkenness (Cretney and Davis, 1997, p. 151). The sentences imposed by the magistrates reinforced this trivialising discourse. Conditional discharges were frequently imposed, while community sentences and imprisonment were imposed for less often (Cretney and Davis, 1997, p. 152). In cases where the parties remained in a relationship, magistrates were less willing to impose severe penalties, arguing that they did not wish to cause hardship to victims by imposing fines or custodial sentences on offenders (Cretney and Davis, 1997, p. 153). In consequence, there is ‘low level punishment of serious violence because it occurs in a “domestic” context’ (Cretney and Davis, 1997, p. 153). A similar approach to sentencing is still adopted in the specialist domestic violence courts, despite the fact that they are staffed by personnel trained in the dynamics of domestic violence (Dinovitzer and Dawson, 2007, p. 666; see Chapter 13). The secondary victimisation that results from victim participation in a court process that undermines rather than vindicates their experiences of violence has led many victims to choose to avoid involvement in the criminal process altogether (Cretney and Davis, 1997, p. 155), thereby contributing to the significant degree of under-reporting that has been documented to exist in domestic violence cases (Home Office, 2003b, p. 10; see Chapter 13 for a discussion of reforms to the court process).

Conclusion This chapter has documented the extent of rape, sexual assault and domestic violence. Although it has emphasised that the victims of these crimes are predominantly women, it has highlighted the increasing prevalence of sexual and domestic violence against men. In addition, it has examined the psychological, physical and financial effects of this violence on victims, pointing to the fact that the effects on rape victims are considerable and that minority ethnic women frequently experience the impact of domestic violence more severely than white women. The chapter has also demonstrated that the rate of attrition in rape cases is increasing progressively, posing a serious challenge to the police and the CPS. The continued existence of high attrition rates will create more secondary

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victimisation that will reinforce victims’ unwillingness to report. Chapter 13 considers recent police and multi-agency strategies, as well as CPS policies, which have been introduced in an attempt to develop a more effective response to rape and domestic violence victims. In addition, this chapter has analysed rape victims’ experiences of the trial process, indicating that they are objectified and subjected to traumatic cross-examination. Likewise, the experiences of domestic violence victims are trivialised and under-valued. Chapter 9 examines reforms to the law of evidence and procedure that have been introduced to ameliorate such secondary victimisation in court, while Chapter 10 contends that alternative procedures, such as auxiliary prosecution and victims’ lawyers, ought to be introduced in order to empower rape and domestic violence victims, amongst others, in the trial process.

Questions for further discussion

• • • • • • •

Why does the myth that most women are raped by strangers persist when the figures indicate that most women are raped by someone they know? Why do so few women and men report rape? Discuss the measures that could be adopted to improve the rate of attrition in rape cases. What is the best explanation for the increasing prevalence of domestic violence against men? Why is domestic violence against minority ethnic women so underreported? What challenges do empirical findings such as rape in prison, BCS and other findings on male/female victimisation levels pose for traditional theories regarding rape and domestic violence? Why are rape and domestic violence victims’ experiences of the court process referred to as secondary victimisation?

Chapter 5

Victims from minority ethnic groups

Introduction English policy and discourse regarding the victimisation of minority ethnic communities have developed against the backdrop of the Macpherson Report (1999) into the death of Stephen Lawrence, which proved to be a pivotal point in this discourse as well as in the way police relate to such victimisation. The very existence of the term ‘institutional racism’, as well as the way in which the interpretation of this term has changed, demonstrates the extent to which values, perceptions and approaches to such victimisation have changed from the time of the Scarman Report (1986) to the Macpherson Report (1999) and thereafter. The purpose of this chapter is three-fold. First, it examines minority ethnic persons’ experiences of primary victimisation in the context of crime generally. Findings from the British Crime Survey are used to determine the extent to which black and minority ethnic (BME) groups are at greater risk of being victims of such crime and to what extent race is a defining factor in their risk of victimisation. Second, it assesses the extent and impact of racially motivated crime. It highlights the fact that the wider British society and official institutions have only recently come to recognise and respond to crimes perpetrated against individuals because of their race, religion or cultural background and that, prior to such recognition, victims were left without effective protection. In addition, it considers the secondary victimisation experienced by victims at the hands of criminal justice agencies, particularly the police. Finally, the chapter addresses the question whether the police have acted unjustly in the way in which they exercise their powers to stop and search minority ethnic people.

Ethnicity, victimisation and social distribution Extent of ‘ordinary’ criminal victimisation In order to determine the extent to which members of BME groups are victims of crime generally, the BCS has employed ‘booster’ surveys. These surveys

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comprise the over-sampling of a particular group, in this case BME groups, by, for example, conducting more questionnaires in areas known to have high concentrations of such groups (Salisbury and Upson, 2004, p. 6). It appeared from the earlier booster reports that all BME groups are at greater risk of criminal victimisation. It also appeared that different minority ethnic groups experience different levels of vulnerability to certain crimes. Fitzgerald and Hale (1996) found that whilst African-Caribbeans were at greater risk of assaults and robberies, Pakistanis were at greater overall risk, particularly as regards vandalism (1996, p. 2). The authors maintain that this perception of increased risk to BME groups may be explained when key differences in demographics, such as a younger age structure, and differences in socio-economic context, such as employment status and inner-city residence, are taken into account (1996, p. 2). These differences have an impact on the likelihood of victimisation by increasing the risk of crime. Thus BME groups may often find themselves in a situation where one instance of disproportionate disadvantage in socio-economic terms, such as inner-city residence, may be compounded by the further disadvantage of being at an increased risk of crime victimisation. Fitzgerald and Hale take the view that race per se may only be an independent relevant indicator in some cases, for instance in the case of exposure to vandalism by persons of Indian ethnicity (1996, p. 2). The results of the 2000 BCS confirmed this pattern of risk, with black people having a higher vulnerability to personal crime and Asian people being more likely to be the victims of household crime such as burglary (Clancy et al., 2001, p. 11). The report confirms the substantive findings of past research by concluding that demographic and socio-economic factors, such as living in London or other inner-city areas, largely explain the differing vulnerability to crime amongst BME groups (2001, p. 13). However, there are some offences, such as vehicle crime, that can be explained only by reference to the fact that the victims are black or Indian (2001, p. 13). After 2001 there was a small but significant change in the classification of ethnic groups and in the findings of the BCS. Following the 2001 Census new ethnic group classifications were adopted into the BCS that made comparison with previous surveys difficult. The key difference was the inclusion of a new ‘mixed’ ethnic grouping. This addition did register some significant findings in the BCS of 2001/2 and 2002/3. The increased risk of crime for people from BME groups was accounted for by the higher proportion of those aged 16 to 34 years (demographically at greater risk of victimisation). However, despite the new ‘mixed’ group having a similar younger age profile and socio-economic disadvantage as regards crime (inner-city residency and economic activity), such factors could not explain the fact that it had a higher risk of victimisation. This higher risk was nonetheless statistically significant for burglary only by 2002/3 (Salisbury and Upson, 2004, p. 2). It must be borne in mind that populations are not static; they change over

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time. Thus Jansson (2006) pointed out that the minority ethnic population of England and Wales had reached 4.5 million by 2001 – approximately 9 per cent of the total population (2006, p. 1). Figures from the 2004/5 BCS confirmed the traditional pattern of no differences in the risk of overall crime between BME and white groups. They also reflected the newer pattern, in terms of which people from the ‘mixed’ group had slightly higher rates of victimisation of 29 per cent compared with Asian/Asian British (26 per cent), black/black British (24 per cent) and white groups (24 per cent), although in this measurement they were not statistically significantly different (2006, p. 5). As with previous findings Jansson found that the differences were the result not of race but of socio-demographic factors. Certain changes in the findings became apparent when specific crimes were considered. An analysis of crimes against the person, such as common assault, robbery and wounding, revealed that race was not an independent factor, but rather that age (16–24 years), marital status (separated or divorced), socialisation (visiting bars) and living in an area perceived to have high levels of antisocial behaviour were more significant (2006, p. 7). However, an examination of property crime, such as burglary, vandalism and vehicle-related thefts, showed that ethnicity was an independent risk factor as regards burglary. Households from Asian or ‘mixed’ groups, combined with age, antisocial behaviour and lack of home security, were the most significant factors associated with victimisation (2006, p. 8). A separate analysis was carried out that employed a breakdown of categories into Asian-Indian, Asian-Pakistani, Asian-Bangladeshi, black-African and black-Caribbean. Whilst there were no differences between the African and Caribbean groups in respect of any crimes or between Asian groups as regards violent or personal crimes, Asian-Pakistanis had a higher risk of overall crime than the other two Asian groups and the white group (2006, p. 9). Thus while larger categories may reveal similar levels of victimisation after sociodemographic factors have been considered, certain minorities within larger minority groups may indeed suffer from higher rates of overall victimisation. Finally, population rates of repeat victimisation were similar to those of all BME groups (2006, p. 9). Fear of crime According to the BCS findings, it would appear that once socio-demographic factors are taken into consideration there has been very little overall difference in rates of victimisation over the last decade. However, there are fluctuations in this pattern in terms of which particular minority ethnic groups, such as ‘mixed’ groups and Asian-Pakistanis, are disproportionately victimised regardless of socio-demographic disadvantage. These fluctuations may explain differences in the fear of crime reported to successive BCS surveys. All the BCS surveys discussed thus far have found significant differences in

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the expressed fear of crime. Fitzgerald and Hale (1996) found that Asian groups felt more unsafe, even after other factors had been considered, whereas AfricanCaribbeans felt safer on the streets on their own but less safe in their own homes (1996, p. 3). Clancy et al. (2001) confirmed that BME groups are generally more worried about overall crime than white groups (2001, p. 93). Interestingly, the elderly are reported as being less fearful of crime than is often assumed. They are less fearful of rape, mugging, burglary and racial attack than younger people (2001, p. 94). Even among white groups differences emerge, with those living in London feeling less safe than those living outside London (2001, p. 90). Whilst experience, such as being a victim of crime, and the environment, with litter and graffiti serving as indicators of incivility and disorder, are predictive factors in levels of fear, race nonetheless emerges as an independent factor associated with anxiety about crime, particularly in Pakistani and Bangladeshi groups (2001, p. 94). Thus, it is not only people living in high-crime areas who fear crime more because of the socio-demographic factors associated with their residency, but also BME groups, particularly Pakistani/Bangladeshi groups, who feel greater anxiety. Salisbury and Upson (2004) documented similar findings in the 2002/3 BCS, where BME groups, although living in predominantly inner-city areas, were still more worried about crime than white groups, even after the type of area and past victimisation had been taken into account (2004, p. 5). Interestingly, despite the fact that ‘mixed’ groups experience higher levels of violence, Asian groups were much more anxious about becoming a victim of violence (2004, p. 5). Socio-demographic factors, combined with higher anxiety levels, accordingly compound the burden of crime. This unequal ‘crime share’ is reinforced by minority ethnic groups’ experiences of racially motivated crime, which is the subject of the following section.

Racially motivated crime Definition The definition of racially motivated incidents, and the collection of information documenting their extent, is relatively recent. Prior to the Stephen Lawrence inquiry a racially motivated incident was defined as: any incident in which it appears to the reporting or investigating officer that the complaint involves an element of racial motivation, or any incident which includes an allegation of racial motivation made by any person. (Maynard and Read, 1997, p. 1) This definition was altered significantly in pursuance of the recommendations of the Macpherson Report, in terms of which the emphasis was shifted from the police perception of the incident to the perception of the victim. As redefined, a racist incident is one that is ‘perceived as racist by the victim or any other

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person’ (Macpherson, 1999, p. 328). The Association of Chief Police Officers (ACPO) has recommended the adoption of this definition across all police forces (see Chapter 13). The following section is concerned with a delineation of the extent of such incidents. However, the findings must be informed by the fact that, in view of the change in definition, it is difficult to compare more recent findings with earlier ones. Distribution of crime and impact on victims Racially motivated incidents and crimes are largely recorded in areas where there is a low concentration of BME groups. Research conducted by Maynard and Read (1997) that looked at the approximately 13,000 racially motivated incidents in 1996/7 found that the absolute number of these occurrences were located, perhaps predictably, in police force areas where high numbers of BME groups were to be found. The highest absolute numbers of incidents were thus found in the Metropolitan, West Midlands, West Yorkshire and Greater Manchester Police authority areas (1997, p. 4). Perhaps more interestingly, when the same figures were analysed according to incidents per 1,000 of the minority ethnic group population resident in police force areas, a significant difference was found, with Northumbria, Cumbria, Cleveland and South Wales (with much lower concentrations of BME groups) having the highest rates per thousand (1997, p. 6). This pattern appears to apply equally to cities with a much greater BME representation. Bowling’s (1998) research conducted in the housing district of North Plaistow located in the east London borough of Newham revealed a concentration of police-recorded incidents in the west of the borough where the minority ethnic population was low (1998, pp. 185–8). This replicated Sibbitt’s (1997) research in two anonymous London boroughs that found racial incidents were higher in areas of lower-density BME representation (1997, p. 24). In addition, Bowling’s own booster sample questionnaire revealed the targeting of Asian groups living in areas with a relatively low BME representation (1998, p. 200). Three years later Brimicombe et al. (2001) conducted a broader study of racially motivated incidents recorded in all 24 electoral wards of Newham. In areas to the south and west of the borough where white population percentages were the highest, there was a higher rate of recorded victimisation of BME groups (2001, p. 301). Equally, the highest rates of allegations made by whites were recorded in a ward where whites were the minority (2001, p. 299). Thus it would seem that racial mix may be seen as a predictor of the level of victimisation and that the highest rates of racial victimisation are likely to occur in areas of low BME population density, although obviously not in all such areas. It may also reflect the aggressive territorial nature of this type of victimisation. BCS reports have looked at racially motivated crimes for nearly two decades. Fitzgerald and Hale (1996) combined data from 1988 and 1992 in their analysis that concluded that the Pakistani minority group was the most vulnerable to

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racially motivated crimes and threats (1996, p. 2). This group perceived that a third of all incidents they experienced were racially motivated compared with lower levels for Indians (18 per cent) and African-Caribbeans (14 per cent) (1996, p. 2). The authors compared these perceptions, which are discussed further below, to the findings regarding actual experiences of racial victimisation in the previous year, which showed that 8 per cent of Pakistani respondents, 5 per cent of Indians and 4 per cent of African-Caribbeans had experienced such victimisation (1996, p. 2). Figures were not collected for white victims of racial crimes and incidents. By 2001 white victimisation was included in the BCS sweeps. Clancy et al. (2001) documented certain trends in the rates of racially motivated crime. Recognising that racially motivated crime is often cumulative in nature or part of a series of acts rather than just one isolated incident, Clancy et al. also provided statistics on the number of incidents per 10,000 adults. During the period from 1993 to 1999 (years 1993, 1995 and 1999) racist crime peaked for all groups, except African-Caribbeans, in 1995 falling to 28 per cent to the year 1999 (2001, p. 29). During the same four-year period, general overall crime fell by 22 per cent. The estimated number of racist incidents thus fell from around the 380,000–390,000 mark in 1995 to 280,000 by 1999 (2001, p. 41). This fall may reflect, but slightly surpass, general trends in overall crime during this time. Perhaps even more importantly, the percentage of such incidents compared with overall victimisation dropped from nearly 15 per cent for BME groups (compared with 1 per cent for whites) to just under 12.5 per cent (2001, p. 29). Whilst the aggregate figures revealed that white groups were the victims in 63 per cent of racist incidents, this figure is misleading because of the much greater size of the white population. The important comparison is between the rates of victimisation per 10,000 adults, which reveals a very different picture. At its peak the rate for white groups was 65 per 10,000 compared with 1,886 for the Pakistani/Bangladeshi BME group (2001, p. 24). Although, as was indicated above, statistics after 2002/3 are not directly comparable with earlier statistics, the downward trend in racist victimisation continued, with an estimated 206,000 incidents for 2002/3 (Docking and Tuffin, 2005, p. 10). By the 2004/5 BCS interviews this falling trend had continued, with an estimated 179,000 racially motivated crimes ( Jansson, 2006, p. 15). In less than a decade estimated figures for racist crimes had fallen from around the 380,000 mark to 179,000 or, in other words, had halved. Perhaps less reassuringly, official police-recorded statistics during the same time-span increased significantly. As has already been noted, 13,000 racist incidents were recorded by the police in 1996/7. The figures for the following year were almost the same, but by 1998/9 they showed a significant increase to 23,000 (Docking and Tuffin, 2005, p. 8). A steep rise to nearly 48,000 followed in 1999/ 2000, which was followed by a continued rise to 54,000 in 2001/2. The subsequent year showed a decline (below the 50,000 mark) and, thereafter, a small increase to roughly the 2001/2 level. This rise could reflect a real increase in

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absolute levels of racist victimisation or a combination of factors that led to a higher rate of reporting, which is more likely. Clancy et al. (2001) suggest that it is the latter, with reporting rates amongst BME groups rising from 28 per cent in 1995 to 40 per cent in 1999 (2001, p. 39). Several explanations have been given for this increase in reporting. First, the steep rise in recorded victimisation coincided with the findings of the Stephen Lawrence inquiry. This may have had the effect of encouraging people who may not otherwise have reported incidents to do so. Second, it was suggested by Docking and Tuffin that in some northern police areas extremist political accelerants, namely the BNP, may have made some BME members more willing to report (2005, p. 13). In addition, it was mooted that the advent of the recording and reporting of incidents by other institutions, such as schools, had led to an increase in official statistics (2005, p. 14). The continued increase in official statistics of racist victimisation may thus not be as distressing as it appears, but may more accurately be regarded as reflecting an increase in confidence in dealing with racist crimes by demanding a legal response. If the BCS indications prove correct, the levels of racially motivated crime are slowly diminishing in line with decreasing levels of tolerance to it. Whilst levels of racist victimisation are debated, the nature of these crimes must also be assessed. Racially motivated crime takes many forms, ranging from ‘low-level’ harassment to murder (Bowling and Phillips, 2002, p. 113). Bowling (1998) found that the type of incident most commonly experienced by victims was insulting behaviour or verbal abuse, followed by actual and/or attempted damage to property, threatening behaviour to the person or property, attempted assault and actual assault (1998, p. 198). He also found that the area around the victim’s home or the street outside it was the most likely location for such victimisation (1998, p. 199). This pattern of victimisation around the home was confirmed by Clancy et al. (2001), who also found that the area within and around the home was the most likely setting for racist victimisation for all groups (2001, p. 33). On the surface, individual incidents of racial victimisation may not appear serious but as Bowling points out, any type of incident becomes serious when it is repeated frequently enough (1998, p. 201). Bowling and Phillips have argued that it is misleading to view such victimisation as comprising isolated incidents. It is more accurate to regard racial victimisation as a process, consisting of a continuum of violence ranging from ‘racist abuse at one end of the spectrum [to] murder at the other’ (Bowling and Phillips, 2002, p. 113). ‘Low-level’ racial harassment is likely to be under-reported. As Docking and Tuffin (2005) noted, some people may report only the more serious racist crimes, regarding other ‘lesser’ offences as so common that they do not report them (Docking and Tuffin, 2005, p. 17). This may well be the case for persons in certain occupations who are continuously exposed to members of the public, such as take-away owners and taxi drivers, who may be disinclined to report every incident or lack the time to do so (2005, p. 17). Official crime surveys may

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also not reflect incidents of ‘low-level’ harassment fully as they focus on discrete incidents rather than processes of victimisation, and, in consequence, may not fully capture minority ethnic persons’ lived realities of racial victimisation (see Chapter 3). In view of the redefinition of a racist incident as one that is ‘perceived as racist by the victim or any other person’ (see above), it is important to consider this discrepancy between the documented extent of racist victimisation and victims’ lived realities. Jansson’s (2006) study of racially motivated crimes revealed that, overall, BME groups reported much higher levels of perceived racial motivation in crimes committed against them, regarding 9 per cent of crimes in respect of which they were victims as racially motivated, compared with less than 1 per cent for white groups. This figure increases in regard to certain offences committed against BME groups: 31 per cent of vandalism to the home and 16 per cent of all personal crimes were thought to be racially driven (2006, p. 16). The reasons why crimes or incidents are perceived as racially motivated may have changed over time. In 2001 Clancy et al. found that the use of racist language was the main reason that black and Asian groups perceived incidents as racially motivated (61 per cent and 66 per cent respectively) compared with 31 per cent for white victims (2001, p. 32). By 2006 this had changed, albeit as regards a slightly different measurement of crimes, with BME groups reporting racist language in 41 per cent of crimes compared with 35 per cent for white groups (Jansson, 2006, p. 18). The most common reason given by BME groups for thinking a crime was racially driven was the victim’s race or country of origin (53 per cent – an increase of 4–5 per cent) compared with 26 per cent of white people (2006, p. 18). Impact on victims As was stated above, racially motivated crime ought to be regarded as a process involving a continuum of violence ranging from ‘low-level’ harassment to violent crimes against the person. This continuum of violence has a severe impact on victims. The 2000 BCS showed that many more victims of racist incidents (42 per cent) reported being ‘very much affected by the incident’ in comparison with victims of other incidents (19 per cent) (Spalek, 2006, p. 86). In the case of violent offences against the person, victims may suffer physical injury. In addition, the impact on victims takes emotional and financial forms. The most profound emotional effect is a heightened level of fear of racist violence, which causes victims to feel unsafe and consequently to alter their lifestyles to avoid victimisation. Such alterations include not going out in the evenings and avoiding certain kinds of people and places, such as pubs and nightclubs (Bowling and Phillips, 2002, p. 113). In Phillips and Sampson’s (1998) study on an east London housing estate, victims imposed a range of restrictions on their lifestyles to guard against victimisation, such as restricting

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their children’s outdoor activities, using different modes of transport or shopping in different areas (Phillips and Sampson, 1998, p. 127). Victims also experience anger and shock (Spalek, 2006, p. 85). Other reactions include depression, mental distress, loss of confidence and self-esteem and changes to sleeping patterns (Garland and Chakraborti, 2006, p. 58). Victims may also incur financial costs in order to increase their sense of security. For instance, they may fit extra locks and bolts (Phillips and Sampson, 1998, p. 128) or shatterproof glass and fireproof mailboxes in their homes (Spalek, 2006, p. 85). It is important to bear in mind, however, that racially motivated crime does not merely operate at the individual level of the affected victim but seeks to cause ‘collateral’ damage within the broader community. The damage does not comprise only the individual physical or emotional scars and financial loss but also the hostility, fear, anxiety and tension that ripple out across communities (Perry, 2001, p. 10). Racist crimes are regarded by some commentators, such as Perry, as constituting ‘message crimes’ that warn minority ethnic communities that, in extremis, crossing certain lines may be met by violent action (Perry, 2003, p. 19). The analysis thus far has focused on a general representation of minority ethnic victims’ experiences of the consequences of such racist discrimination. However, recent research has highlighted the extent to which victims of racism in rural areas has been overlooked. In addition, some scholars have been concerned to point to the fact that the conflation of race and religion in most research has obscured the increasing incidence of religiously motivated crime against Muslims. It is to a consideration of the victimisation experienced by these two groups that the discussion now turns. Victims in rural areas A significant degree of racist crime has recently been documented in rural areas. Malcolm (2004) assessed a range of experiences of racism away from the bigger cities in West Norfolk. Such experiences included the racial abuse of young black footballers by other players and spectators (2004, p. 70), the subtle segregation of children by their parents and damage to a shop, which was regarded as racist, but not described as such because the owner did not want trouble (2004, pp. 71–8). By contrast Robinson and Gardner (2004) warned against stereotyping BME groups as victims and homogenous entities. They contended that being ‘different’ was regarded as creating social benefits in certain circumstances. Some of those interviewed enjoyed ‘standing out’, while others regarded living outside a minority ethnic area as giving them freedom from certain rules and expectations (2004, p. 95). The relative positions of power of BME persons within small communities affects their experiences, with economically central or professional persons feeling more accepted and in a stronger position (2004, p. 99).

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Chakraborti and Garland (2004), however, have warned that affirming the perceived enjoyment of ‘standing out’ has the potential to lead to BME groups being ‘exoticized’ and portrayed as outsiders against the backdrop of an allwhite rural canvas (2004, p. 123). Garland and Chakraborti (2006) contend that this ‘othering’ by the white community may take the form of racist hostility and harassment ‘ranging from verbal abuse to physical attack that can have devastating emotional and financial effects upon recipients’ (2006, p. 51). Respondents in their study reported frequent and repeated ‘low-level’ harassment, such as stone throwing and racist jokes (2006, p. 55), as well as acts of serious violence, including criminal damage and assault (2006, p. 56). The racist views that motivate such harassment and violence in rural areas have been found to be widely held rather than limited to ‘extremist’ groups (Ray et al., 2004, cited in Garland and Chakraborti, 2006, p. 65; see below). Religiously motivated crime Until very recently, official statistics, crime surveys and most research studies regarding hate crime perpetrated against minority ethnic communities have emphasised the racial rather than the religious motivation for the crime. The victimisation of Pakistanis, as well as their greater levels of fear of crime, for instance, has been documented as a sub-category of crime against Asians (Spalek, 2002, p. 11). No account has been taken of the fact that they are Muslims, and that their experiences and fear of victimisation may be linked to anti-Muslim hostility in the aftermath of the September 11 atrocities. However, the religious motivation of such victimisation is increasingly being recognised. ACPO has adopted a definition of a ‘faith-related incident’ that is analogous to its definition of a racist incident, namely ‘any incident which is perceived to be based upon prejudice towards or hatred of the faith of the victim or so perceived by the victim or any other person’ (ACPO, 2005, para 2.3.5). In addition, the Runnymede Trust has introduced the term ‘Islamophobia’ to describe the motivation behind attacks on the Muslim community (McGhee, 2005, p. 103). The incidence of anti-Muslim harassment and violence has increased demonstrably in the wake of September 11. Muslim women have had their headscarves ripped off their heads, men, women and children have been physically assaulted and verbally attacked, and criminal damage has been perpetrated against mosques and individuals’ homes (Spalek, 2002, p. 11). Violence against Muslims, Sikhs, Arabs and other Asian groups has been subject to a four-fold increase in certain areas since September 11, with most of the focus on the Muslim community. In Tower Hamlets in London, attacks on the Asian community increased by more than 75 per cent (McGhee, 2005, p. 102). The Islamic Human Rights Commission (2002) found extensive harassment and violence against Muslims after September 11. It reported 188 instances of verbal and written abuse, including malicious telephone calls and death threats

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made to Muslim organisations as well as individuals. Twenty cases of discrimination, experienced particularly by children at school, were also reported. In addition, 108 instances of psychological pressure and harassment, such as pressure to remove headscarves and shave off beards, were documented. Most disturbingly, the Commission found 344 cases of serious crimes of violence, ranging from ‘pushing, shoving, being spat at to violent attacks leaving victims hospitalized and in one case paralyzed’. Chakraborti (2007) points out that the amount of religiously motivated crime reported in London increased six-fold in the three weeks following the July 2005 bombings, and that such crime was predominantly perpetrated against Muslim homes and mosques. Furthermore, at a national level the police recorded more than 1,200 alleged anti-Muslim incidents in these three weeks (Chakraborti, 2007, p. 113). Although much of this crime has been perpetrated by individuals, Far Right groups, such as the BNP, have also increasingly directed their activities to Muslims in the period after September 11, resulting in the proliferation of campaigns and pamphlets vilifying Islam (McGhee, 2005, pp. 103–4). Chakraborti notes that such religious hatred is not restricted to extremist white groups, but that anti-Muslim attitudes on the part of extremist Asian groups, such as the Sikh Shere-e-Punjab group, have caused them to collaborate with the BNP (Chakraborti, 2007, p. 113). The increase in religiously motivated crime has resulted in Muslim communities experiencing a sense of besiegement, heightened fear and insecurity. A national poll of Muslim households, which was undertaken after the July 2005 bombings, showed that about 63 per cent of Muslim families were so afraid of an upsurge in anti-Muslim attacks that they were considering leaving the country (Chakraborti, 2007, p. 113). The perpetrators of hate In view of the extent of racially motivated crime and its serious effects on victims, it is important to determine who the perpetrators are and what drives them to commit such crimes. Sibbitt (1997) cast light on some of the features of likely offenders. He reported that some of the incidents were committed by older teenagers and young men. Clancy et al. (2001) found that the 16–24 age group were responsible for 46 per cent of racially motivated incidents, with 12 per cent being perpetrated by children of school age (2001, p. 36). Teenagers assaulted not only BME teenagers but also adults (1997, p. 29). Younger children also threw stones and eggs at people in and around their homes (1997, p. 30). Indeed, perpetrators included young teenagers, adults, pensioners and families, with some families even conspiring with each other (1997, p. 32). Whilst Far Right organisations, such as the BNP, had little direct involvement in cases covered by the research, they did provide a focus, especially at the time of elections, for people’s feelings of deprivation and tendencies to blame

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minority ethnic communities for their predicament (1997, p. 38). Sibbitt presented a typology that posited involvement by pensioners as arising from attitudes that stemmed from having witnessed considerable changes in the characteristics of the population at a time of increasing physical insecurity and continued financial inequality for themselves as well as their children and grandchildren. Sibbitt suggests that such attitudes, combined with a view that their country, their community and their individual lives are being ‘invaded’ by outsiders, leads to the scapegoating of minority ethnic groups (1997, p. 78). Racist hate crime has not attracted a sustained theoretical account and there is thus little in the way of a ‘racial criminology’ (Perry, 2001, p. 42). A number of traditional criminological theories have been used in an attempt to explain such crime. Perry dismisses the use of Hirschi’s social control theory, which has posited attachment to significant others as a reason for non-offending, to explain racist hate crime, as individuals, particularly youth, who commit such crime may have very high levels of attachment to significant others, such as parents. Sibbitt (1997) has indicated that having such strong attachments to parents and grandparents who may have racist views may be part of the problem. Merton’s strain theory has also been adapted to hate crime. It has been argued that offenders may be driven to innovative adaptations to the strain they experience on account of fears arising from competition for jobs, economic and territorial insecurity and competition for housing, which are fuelled by hostile media depictions of immigration as a cultural threat to white identity (Hall, 2005, p. 75; Hopkins-Burke, 2004, p. 22). However, this explanation creates the danger that offenders may be implicitly characterised as predominantly working class. This is misleading as racist hate crime cuts across all class boundaries. Furthermore, and most importantly, this approach fails to explain why minority ethnic groups, which are also predominantly working class and experience similar frustrations to those described above, do not commit more crime. Perry has posited that offenders may engage in rebellion as a means of dealing with the strain they experience, much like ‘Aryan’ organisations in the US and extreme right-wing groups in Europe (2001, p. 36). Empirically, however, the vast majority of offenders are not members of extremist groups. Indeed, some authors have suggested that racist hate crime, far from deviating from societal norms, conforms to the values inherent in society generally (Perry, 2001, p. 37; Hopkins-Burke, 2004, p. 20). Perry has contended that such hate crime may be explained by a perspective that she calls ‘doing difference’ (2001, p. 46). Nations such as the US exhibit a number of socially constructed hierarchical ‘notions of difference’, including gender, sexuality and race (2001, p. 46). Constructions of race have fixed boundaries of ‘belonging’ that inform racial identity and that exclude outsiders. The white Christian male is the norm in the US, with everyone outside this identity constructed as the ‘Other’ and frequently judged unfavourably. This ‘Other’ is treated unequally in terms of power and resources and, within the

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context of race, is the recipient of negative representations of racial difference. This hegemony of difference is institutionalised through unequal relations in, amongst others, the sphere of employment, where race discrimination may occur, and the cultural sphere, where the media may depict minority ethnic groups as the dangerous ‘criminal other’ (2001, p. 49). Hate crime serves as a blunt tool of order maintenance for the dominant group to ‘reassert the normativity of the white American’ by victimising groups which do not fall within this category (2000, p. 60). Perry’s theory has a number of limitations. First, as Hall has pointed out, the construction of difference approach applies only where perpetrators are from the dominant race group and victims are from minority groups (Hall, 2005, p. 79). This excludes victims from dominant groups from the concept of victimhood and fails to accord with the reality that dominant groups may also be victims of racially motivated crime. Second, Perry’s dyad between the powerful dominant group and the powerless ‘Other’ overlooks the fact that power is more relative, shifting and diffuse. As Hopkins-Burke has contended, power relations in contemporary post-structuralist society are more complex and fragmented and thus ‘[b]lack men can have power over white women’ and employers or cultural icons may emanate from groups depicted as the ‘Other’ (2004, p. 41). If power relations are more complex than Perry’s theory suggests, theoretical space must be provided for the attribution of responsibility for racist offending by minority groups on victims from dominant groups. Drawing on the work of Sibbitt (1997), Hall has postulated that a variety of factors, some psychological and some contextual, may explain racist hate crime (Hall, 2005, p. 81). Localised ‘strains’, such as unemployment and poor housing, may provide a context for scapegoating minority ethnic groups. The racist attitudes of local elders also play a part in influencing younger offenders. Furthermore, the tacit support by the wider community for such offending highlights the fact that offenders’ attitudes may be rooted in community values and that racist hate crime is not purely an individual phenomenon (Hall, 2005, p. 83). Secondary victimisation Police responses to racially motivated crime have exacerbated victims’ initial experiences. Prior to the Macpherson Report, but well after the death of Stephen Lawrence in 1993, concerns continued to exist about the poor police response to racist crime. It appeared from the BCS that victims’ satisfaction with police treatment was much less when the incident was racial in nature than it was in regard to other incidents (Bowling and Phillips, 2002, pp. 122–3). Bowling’s (1999) study found that respondents complained that the police response to racist crime was insufficient, that they did not appear to be interested, and that they did not provide victims with information concerning the progress of the case. Some victims took the view that the police were racist (Bowling and Phillips, 2002, p. 123).

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Sibbitt found that police seemed perplexed rather than concerned about reports of racist verbal abuse, viewing it as ‘ordinary people doing fairly ordinary things’ (Sibbitt, 1997, p. 26). Sampson and Phillips (1995) likewise found that victims had lost confidence in the police and local housing departments, saying that it would take ‘a very serious incident for them to respond and help’ (Sampson and Phillips, 1995, p. 16). This lack of sensitivity and concern on the part of the police was compounded in a high-profile case involving a serious attack, which was directed to the CID which treated it as an ordinary serious crime not involving a racist element (1997, p. 26). Such a false classification was also made in the investigation into the murder of Stephen Lawrence. This murder, which took place on 22 April 1993 in Eltham, south-east London, set in train a series of unacceptable police errors that included treating Stephen’s friend, Duwayne Brooks, as a suspect, failing to treat the murder as a racist one, displaying a poor sense of investigative direction and support for victims, as well as general incompetence and a failure in police leadership. Most importantly, however, the Macpherson Report found that the police were institutionally racist. It defined institutional racism as: [t]he collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people. (Macpherson, 1999, p. 28) Research by Bowling (1999, cited in Bowling and Phillips, 2002, p. 123) provides support for the existence of institutional racism. He found that some police sympathise with white sentiments that minority ethnic groups are taking control of their communities, that some view the use by Asians of their own languages as ‘despicable’ and that some believe that the adherence to Asian traditions, such as mode of dress, renders Asians ‘threatening’ and ‘vulnerable’. Such racist stereotyping detracts from the effectiveness of the police response to racist crime. The criticisms expressed in the Macpherson Report constrained the police, particularly the Metropolitan Police Service (MPS), to introduce significant reforms to their policing policies, including the establishment of a Diversity Strategy and Community Safety Units in all boroughs within their area (Hall, 2005, p. 177; see Chapter 13 for a detailed discussion of reforms to police policy). Despite these changes, however, there are nonetheless continued concerns with police responses to racist crime. Hall points to the danger that, as the MPS receives thousands of reports of racist incidents, with about 300 dedicated officers handling approximately 50–60 cases at a time (in addition to other cases involving domestic violence and homophobic crimes), units may simply be

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overwhelmed (2005, p. 200). Victims may thus continue to perceive the police as uninterested and insensitive and police may be forced to prioritise cases, thereby reintroducing police discretion into the policing of racist crime. There is also evidence that police forces other than the MPS respond insensitively to victims, even in the aftermath of the Macpherson Report. In their study of racism in rural areas, Garland and Chakraborti found that some victims felt that their cases had not been taken seriously, and that the police had not understood the impact of racism. Other victims stated that the police had responded too slowly and had treated them ‘brusquely’, ‘contemptuously’ and, even, in a smaller number of cases, ‘aggressively’ (2006, p. 60). There may also be a tendency on the part of the police to regard ‘low-level’ incidents as unimportant (2006, p. 61). Furthermore, Docking and Tuffin (2005) point to the lack of satisfactory interpreting services to overcome language barriers in rural areas (2005, p. 43). The police are not the only agency to have caused victims to experience secondary victimisation. In some cases, multi-agency initiatives have compounded these experiences, despite having been established in terms of the Crime and Disorder Act 1998 to address racially motivated victimisation (see Chapter 13). Research has revealed considerable flaws in the efficacy of such initiatives, such as their refusal to admit the serious nature or the scale of racist crime, their attribution of blame to victims, and their view that ‘inaction against offenders was the most appropriate statutory response’ (Bowling and Phillips, 2002, p. 124). In addition, victimised groups may feel politically isolated from tenants’ associations and local political representatives, as appeared from Sampson and Phillips’ (1995) study of Bengali and Somali groups’ experiences of multi-agency responses to racist victimisation (1995, p. 21). On a more positive note, however, the latest BCS findings suggest that the rate of reporting is improving, with 55 per cent of the victims of racist crime indicating that the police knew about the crime (Jansson, 2006, p. 31). Furthermore, Docking and Tuffin (2005) note that percentages of racist incidents resulting in a charge rose from 8 per cent in 1999/2000 to 12 per cent in 2003/4 (2005, p. 44). Of those charged, the conviction rate rose from 81 per cent to 86 per cent in the same period (2005, p. 44). This is an encouraging sign that police practice may be improving, although the rate of attrition at the stage of charging remains very high. In addition, the police still charge offences inaccurately, with the CPS finding that a fifth of charges had been reduced from racially aggravated offences to ordinary offences (2005, p. 45). Despite recent signs of improvement, therefore, the extent of secondary victimisation suffered by minority ethnic communities clearly merits a concerted criminal justice strategy that encompasses not only the police but also the CPS and the courts (see Chapter 13 for a detailed discussion of current criminal justice policy in regard to racially and religiously motivated crime).

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State victimisation: police stops and searches of minority ethnic persons The disproportionate use of police stop and search powers has provoked allegations of unwarranted state victimisation and over-policing for many decades. Early studies found that the police had racist attitudes (Lambert, 1970) and over-used their stop and search powers against black persons (Benyon, 1986). This section evaluates such findings as well as more recent analyses to determine whether racial discrimination in police stop and search practices continues to exist. The Brixton riots of April 1981 and Lord Scarman’s subsequent report (1986) marked the beginning of a new era in the discussion of police stop and search powers. Lord Scarman found that police harassment and inflexibility were present in the immediate build-up to the riots in Brixton. The purpose of Operation Swamp was to detect and arrest burglars and robbers on the streets. When 112 officers flooded the area making extensive use of stop and search powers, this, coupled with a police culture of racial stereotyping, led to young black men being stopped in more than half of the 943 stops that were made in five days. Of the 75 arrests made, the most frequent charge was drug possession, which was unrelated to the events. This type of policing provided a tense setting where any incident was likely to spark the subsequent disturbances. One of the more detailed studies concerning stop and search in the 1980s was conducted in London by Smith and Gray (1985). They surveyed a ‘boosted’ sample of 2,420 Londoners (1,411 persons from a general survey and 1,009 ‘Asian and West Indian’ persons) and asked them a series of questions on crime and policing, the answers to which were combined with observational data they had collected themselves. The sampled results revealed a 16 per cent general level of stops in cars (the vast majority of stops) and on foot (1985, p. 89). Although respondents had different habits concerning being out on the streets at night, for instance, this could not be measured in the survey (1985, p. 89). Smith and Gray did find significant differences in stops between ethnic groups. Against the general level of vehicle stops in the last 12 months, 14 per cent, 49 per cent of young African-Caribbeans were stopped, which appeared to be an excessively high percentage (1985, p. 91). However, when compared with the percentage of white persons from the same age group who were stopped (43 per cent), the discrepancy appeared to be less (although it was nonetheless much greater in relation to the percentage of 15–24 year old Asians stopped, viz 13 per cent). What was noticeably different was the mean average number of stops of young black drivers compared with their white counterparts. Young black drivers stopped had been stopped five times, whereas young white drivers had been stopped only 1.94 times on average (1985, p. 91). The chances that a young driver in London who had been stopped would be stopped again in the same year thus differed substantially according to race. The key difference found by Smith and Gray regarding stops on foot related

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not to the average number of stops but to the percentage stopped, with whites aged 15–24 years reporting a rate of 18 per cent as against 45 per cent for young black persons and 7 per cent for young Asians (1985, p. 92). These two types of stops combined in the 15–24-year age group to produce a rate of 44 per cent for whites, 63 per cent for African-Caribbeans and 18 per cent for Asians (1985, p. 92). The authors did state that other factors also affected the figures. Unemployed persons were six times as likely to be stopped on foot and the professional and managerial classes were much less likely to be stopped in their cars than unskilled or manual workers (18 per cent versus 36 per cent), although no detailed information on the type and age of car was given (1985, p. 93). This detailed study did little to allay fears of disproportionate use of police powers amongst minority ethnic groups, particularly African-Caribbeans. The numbers could not be justified by a high ‘strike rate’ in crime detection. Only 5 per cent of stops resulted in a reported offence and summons and an additional 3 per cent were arrested and charged (1985, p. 106). Whilst the difference in gender was pronounced, with a ‘hit’ rate of only 1 per cent for women and 11 per cent for men, there were no differences in the ‘hit’ rates for different racial groups (1985, p. 106). This parity in ‘hit’ rates is significant as evidence of a difference may partly have justified discriminatory stops. Despite the fact that the stops may have cleared up thousands of criminal acts (1985, p. 107), there was no justification for looking for these crimes in a clearly discriminatory fashion. Perhaps the most damaging long-term effect of this discrimination was the direct relationship between discriminatory stops and the increased disinclination to call on or help the police, alienating a large body of people with the potential to provide police with information (1985, p. 253). Furthermore, with stop rates of near or above 50 per cent in many groups, most minority ethnic persons would have had direct experience of being stopped or would have known someone who had been stopped, at least in London. The experience of being stopped thus affected not only those stopped themselves but also those known to them. The next big survey, by Fitzgerald et al. (2002), with a sample of 5,709, also considered Londoners’ experiences of stops. By 1999/2000, when the figures were collected, trends in stops on foot or in cars were on the decline in general (2002, p. 56). Car stops stood at 10 per cent and foot stops at 3 per cent, over the past year, reflecting an aggregate of 12 per cent (2002, p. 54). The percentage of people stopped more than once stood at 20 per cent. Stop activity was much heavier in the inner city than in outer London (2002, p. 55). Of the reasons given for vehicle stops, 31 per cent fell into the non-discretionary categories of speeding, parking and vehicle defect where action is often required, rather than the discretionary categories of stops to determine ownership and vehicle checks (2002, p. 58). The police searched those stopped on foot in 37 per cent of cases and those stopped in vehicles in 22 per cent of cases (2002, p. 58). Younger, lower-class suspects were more likely to be searched once stopped (2002, p. 59).

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The raw figures for race in the case of vehicle stops showed that 9 per cent of white (down from 16 per cent in 1993), 15 per cent of black (down from 25 per cent in 1993), 12 per cent of Indian and 13 per cent of Pakistani/ Bangladeshi drivers were stopped (2002, p. 59). Once car ownership was taken into account, the gap widened slightly between black motorists (19 per cent), Pakistani/Bangladeshi motorists (17 per cent) and Indian and white motorists (13 per cent and 11 per cent). The gap narrowed again when male respondents under the age of 30 years, who had access to a vehicle, were considered, with young black males having a one in three (34 per cent) chance of being stopped, which is very similar to their white contemporaries (29 per cent) but higher than the 12 per cent of other users (2002, p. 60). As Fitzgerald et al. note, ‘the ethnic gap appears to have narrowed over time’ (2002, p. 60). This was also reflected in the percentage stopped on foot, where the stop rates were 2 per cent for white, 5 per cent for black, 3 per cent for Indian and 3 per cent for Pakistani/ Bangladeshi groups (2002, p. 60). Overall there seemed to be a marked decrease in the percentage of white (from 17 per cent to 11 per cent) and black (from 24 per cent to 18 per cent) Londoners stopped either on foot or in a car from 1980 to 2000 (2002, p. 61). The biggest increase was in the percentage of Asians stopped, which was up overall from 7 per cent to 14 per cent over the same period. Fitzgerald et al. maintained that this increase might have been be due to the rising rate of car stops, which may, in itself, be an indication of increased car ownership on the part of young Asians. It might also have been be due to the fact there had been a growth in the number of Asians under the age of 30 years relative to the overall Asian population in London, which increased the likelihood of Asians being stopped (2002, p. 61). Perhaps more worryingly, 2 per cent of the survey sample had been stopped three or more times. Of these, 26 per cent were black, with 30 per cent of young black men reporting being stopped three or more times compared with 8 per cent of young Indian men, 9 per cent of young Pakistani/Bangladeshi men and 9 per cent of young white men (2002, p. 61). The research thus revealed that whilst the disparity in stops of persons from different ethnic groups had decreased, many more young black men had been subject to regular and repeated police inspection. However, the survey did, self-confessedly, not include other factors, such as lifestyle, activity patterns and the condition of the vehicle, which may have affected police stops. At the same time as this research was conducted, another investigation into stop and search, which used a very different set of methodological criteria that would change the way all other studies viewed this subject, was conducted. MVA and Miller (2000) looked at stop and search in five different areas from four different constabularies, namely the Metropolitan (Greenwich and Hounslow), West Yorkshire (Chapeltown), Central Leicester (Leicestershire) and Suffolk (Ipswich) Police. The key difference was that their terms of measurement revolved not around resident population but ‘available population’,

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namely people who use public spaces ‘when and where stops and searches take place’ (2000, p. 83). In addition, they included the supplementary question of whether, if disproportionate stops did occur, such stops could be justified by the patterns of crime in the area (2000, p. 8). It has been indicated above that BME groups are disproportionately affected by ordinary crime as well as racist crime. It may also be the case that some groups experience higher levels of unemployment and school exclusion or have different patterns of socialisation, all of which may affect their availability for being stopped. Availability is thus shaped partly by the actions of individuals and how much time they spend in high-stop areas, partly by police decisions to search certain areas, and partly by wider social forces. One of the methodological limitations of the study was that the researchers were unable to distinguish between low- and high-discretion stops. Lowdiscretion stops were those where the police were directed by a call to service or a speeding motorist, whereas high-discretion ones involved greater police choice, such as ‘dangerous’ driving. The problem of how to find the available population in a given area was solved by the use of a vehicle-mounted camera to record the race of those in public places (2000, p. 15). By setting the camera to focus straight ahead of it, the population of oncoming motorists could be recorded. MVA and Miller found that, in general, the population across the five sites available for stops and searches in public places was very different from the local resident population (2000, p. 41). Both young men and BME groups were over-represented in the population available for stops compared with the local general population of the areas (2000, p. 41). Thus the percentage of whites in the local residential population of Greenwich (about 87 per cent) dropped by anywhere between 15–20 per cent when availability for vehicle stops or stops on foot were considered, whereas the black available population exceeded the residential one by around 15 per cent (2000, p. 42). This pattern was repeated in Chapeltown (2000, p. 50) and Central Leicester, with the latter seeing a similar 20 per cent drop in the available white population but a more marked increase (between 13–25 per cent) in the number of Asians in the public (pedestrian or vehicular) population (2000, p. 46). Indeed, the on-street population of an area such as Greenwich varied during the week, with just under half the people on its streets being local to the area on a Wednesday and only 26 per cent being from the area on a Saturday (2000, p. 44). On the basis of this new methodological approach of looking at the on-street population, the authors concluded that there was no general pattern of discrimination against minority ethnic groups and that in fact white people tended to be stopped disproportionately to their representation in the available population (2000, p. 53). A more specific breakdown of the separate areas revealed a more mixed pattern. In three of the five areas, Greenwich, Chapeltown and Central Leicester, black groups were under-represented when stops were compared with the available population (with the exception of vehicle stops in

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Chapeltown). However, black people were over-represented in vehicle stops in Hounslow and Ipswich compared with the ‘public population’ (2000, pp. 56–8). Asian groups were under-represented in stops and searches everywhere in the study apart from vehicle stops in Central Leicester and searches in Ipswich (2000, p. 58). Thus whereas BME groups were over-represented sporadically but under-represented as a rule, white groups were systematically over-represented, with the exception of Chapeltown (2000, p. 60). It may be that what happens on the ground differs from the findings of previous studies that repeat a now possibly inaccurate message surrounding disproportionate police stop and search. In regard to Greenwich, MVA and Miller stated that ‘[f]ar from using stop and search disproportionately against the black and Asian community, the police search a disproportionately high number of white people’ (2000, p. 54). This study also sought to contrast the geographical patterns of crime with the patterns of stops and searches in the same areas. The authors examined two of the five sites, Chapeltown and Central Leicester, to determine whether the stop and search levels matched the levels of crime and reported a reasonable level of consistency in those areas (2000, p. 63). However, in at least one area in Chapeltown, the level of stops and searches exceeded the crime profile of a few police beats. This area also had a higher number of BME group residential and available populations, rendering it likely that in this police division there would be a disproportionate amplified level of stop and search of BME persons (2000, p. 63). In Central Leicester no such disparities were observed (2000, p. 63). The authors thus concluded that, overall, their research did not reveal systematic evidence of discrimination against BME groups by police in the use of their powers to stop and search. Indeed, Asian people tended to be under-represented while black groups were both under- and over-represented. The only group consistently over-represented were white people (2000, p. 84). However, MVA and Miller warned against complacency, particularly in light of the findings suggesting bias in certain areas (2000, p. 85). They also cautioned that whilst a general pattern of discrimination may not be evident, this does not eliminate the possibility that individual officers may still be using their powers disproportionately (2000, p. 85). Perhaps most discouragingly, the authors stated that the structural factors mentioned above, which are outside the control of the police, may shape patterns of police stops (2000, p. 87). This factor has significant implications for the relations between police and BME groups (2000, p. 87). MVA and Miller’s work was consolidated and extended in research by Waddington et al. (2004) in Reading and Slough in the Thames Valley Police area. In addition to looking at the available population, the authors considered issues of visibility and police activity in terms of geography, time and car type (2004, p. 889). They used a combination of CCTV footage and direct motorised observation. The 2001 Census population differed significantly from the available population in public places. The white population fell by between 13 and 22 per cent in Reading and Slough respectively, whereas the black population

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rose by 7 per cent in Reading and the Asian population increased by 12 per cent in Slough (2004, p. 898). In Reading it was found that, of the available population, black persons were slightly over-represented by 2 per cent and white persons and Asian persons were slightly over-represented by 1 per cent (2004, p. 898). In Slough the white available population was ‘over-policed’ by 12 per cent, the black and Asian populations being under-represented by 2 per cent and 9 per cent respectively (2004, p. 898). The figures thus appear to indicate more disproportionate police use of powers against white groups. Waddington et al. (2004) contended further that the process of patrolling in a car presents difficulties in identifying race clearly. For instance, cruising along a road with parked or double-parked vehicles obscures the view of pedestrians, particularly when it is raining and the windscreen wipers are being used (2004, p. 902). Furthermore, it is easier to observe the race of drivers in oncoming traffic, but making a u-turn is impracticable (2004, p. 901). As regards the timing of stops, the authors pointed out that if bias existed, stops conducted in conditions of better visibility, namely during the day or in summer months, would be more disproportionate than those conducted at night or in winter, but this was not the case (2004, p. 903). They also showed that police stop a greater proportion of white people in town centres than in the rest of the police division. However, the authors emphasised that ‘availability’ itself may be racialised due to higher levels of unemployment and school exclusion in BME groups, but that such structural issues are outside the control of the police. In the US, the debate about state victimisation and the disproportionate use of police powers against minority ethnic groups has taken place within the discourse of racial profiling and vehicle stops. Racial profiling is loosely defined as the police using ethnicity, race or national origin rather than individual behaviour as the sole or the primary basis for intervention (Lichtenburg, 2006, p. 50; Ruiz and Woessner, 2006, p. 179). In the late 1990s US researchers began to employ more sophisticated benchmarks of the population, rather than the largely discredited census data, against which the vehicle stop statistics and any disparities were compared (Alpert et al., 2007, p. 32). The Census benchmark was widely discredited as, rather like population available on the streets, it failed to give any indication of who was actually using the roads. Despite this shift, research conducted in Louisiana by Ruiz and Woessner (2006) still used the Census population benchmark but, in addition, compared stops by DEA-trained specialist crime patrol and sheriffs’ units with regular Louisiana State Traffic Patrol (LSP) on a stretch of interstate highway perceived to be a pipeline along which drugs were transported by Hispanics (2006, p. 178). They found that, despite the fact that these two groups patrolled the same piece of highway at nearly the same times, the unit trained by the DEA not only stopped and arrested Hispanics four times more frequently than the LSP but twenty times more than the general census population (2006, p. 185). The LSP relied on the fairly clear objective and verifiable criterion of speeding as probable cause for the stop in the majority of cases (66 per cent), whereas the

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specialist unit relied on violations that are much more subjective and virtually impossible to disprove, such as ‘improper lane use’ (54 per cent), ‘following too closely’ (17 per cent) and stopping out-of-state drivers (90 per cent versus 30 per cent for the LSP) (2006, p. 189). By comparing police units rather than relying on census data, the researchers went a long way to raising suspicions about the existence of racial and demographic profiling amongst certain specialist police units in Louisiana in the cause of the war on drugs. Novak’s (2004) census-benchmarked study based around Kansas City found that stops for reasons such as equipment violations were used as a pretext to stop out-of-town motorists, a greater number of whom were from minority ethnic groups (2004, p. 89). Shafer et al. (2006) found that Hispanic and African-American drivers were searched (7 per cent of all stops) at disproportionate rates (2006, p. 198) even though the searches were less likely to result from officer discretion than for non-discretionary reasons, such as making an arrest (2006, p. 200). The study of Miami-Dade Police conducted by Alpert et al. (2007) used a variety of analyses obtained through observation of the traffic at intersections at an array of areas with different population mixes. The team was able to record a sample of drivers’ characteristics, including race and gender, a sample of those exceeding the speed limit by 5mph, and a sample of those drivers who made illegal turns or went through a red light (2007, p. 35). They found that, although white males were over-represented amongst traffic violators (51 per cent), they were stopped by the police slightly disproportionately (53 per cent), whilst black males were stopped slightly less than their record of violation would suggest (14 per cent versus 13 per cent) (2007, p. 42). The rates of stops and violations were found to be very close, regardless of the composition of the neighbourhood (2007, p. 44). Post-stop data confirmed previous findings that the greatest predictor of a search is that it was incidental to an arrest being made (2007, p. 46). The New Jersey Turnpike study conducted by Lange et al. (2005) incorporated some sophisticated methodologies into its benchmark measurements, including stratified timed self-reports of ethnicity obtained through a toll booth survey and a radar-triggered camera for measuring speeders (+15mph of limit) and non-speeders (2005, p. 197). It was found that black drivers were often overrepresented amongst speeders by about 10 per cent (2005, p. 210). It was thus not surprising that black drivers were stopped more frequently than their general proportion of the ‘rolling population’ of the turnpike would suggest because of their over-representation in low-discretion speeding violations. This was the case even when different time periods were considered, with black drivers over-represented in stops coinciding with times when they were overrepresented amongst speeders (2005, p. 210). Black drivers were 64 per cent more likely to speed within 65mph limits than white drivers (2005, p. 213). The authors nonetheless acknowledge the limitations of the age data, that minority ethnic drivers were of a younger age and that this may have some explanatory

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relevance because younger drivers are more aggressive (2005, p. 213). The authors concluded that ‘it is plausible for [b]lack drivers to be over-represented in police stops even if police behaviour is unbiased’ (2005, p. 219) where rates of stops closely match rates of speeding (2005, p. 216). It is therefore methodologically important to provide an accurate picture not only of the population that uses a road or highway but of the nature of their activities while they are using it. Likewise, the empirical evidence regarding searches for drugs requires greater depth. Lichtenberg’s Maryland study analysed the drug detection or ‘hit rate’ in vehicle stops by types of drugs, by race and by weight of drugs found by race for all consensual searches (2006, p. 49). Whilst whites had a high detection rate for marijuana compared with minority ethnic groups, whites were the only group that had below-average rates for the three harder drugs of cocaine, crack cocaine and heroin (2006, p. 54). Furthermore, the quantity of drugs found in the case of minority ethnic groups was substantial (2006, p. 55). In his Wichita (Kansas) based research, Withrow (2004) considered the ‘contextual’ (the dominant race of residents) features of the police beat and concluded that police tended to respond to inconsistencies. He found that the race of the individual stopped was not as important a determining factor in the decision to stop as the fact that they were from a different race group than that which predominated in the beat area (2004, p. 355). This explains the alteration of the adage of ‘driving while black’ to ‘driving while different’ (2004, p. 361). The findings of the above studies using available rather than resident populations suggest that, while police stop and search powers may be used disproportionately in specific locations, there is little or mixed evidence of systematic racial bias against BME groups. It must nonetheless be emphasised that these studies do not represent the whole array of empirical findings and that findings may change or future research may reveal contrary trends. However, these studies are indicative of the current direction of research showing that the more complex the methodological approach, the less bias appears to be in evidence. Some recent studies have revealed specific instances of bias as opposed to general patterns of discrimination. Newburn et al. (2004) found that in the rarer cases of the police use of strip search powers in one particular police station (Kilburn in London), even after allowing for the fact that certain groups tended to be arrested for drug offences more than others (that tended to carry an increased chance of strip search), ‘the probability of being strip-searched varied according to arrestees’ ethnicity’ (Newburn et al., 2004, p. 688). This resulted in an increased likelihood of strip search for African-Caribbeans and a decreased likelihood for those described by the police categories as Arabic/ Oriental and Asian (2004, p. 689). Citing studies that relied on resident population, Qureshi and Farrell’s (2006) study of the extended powers of stop and search in terms of the Criminal Justice

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Act 2003, which includes cases of criminal damage, found an uneven distribution of stops amongst the officers surveyed in the police station researched (2006, p. 92). The authors found that 50 per cent of searches were conducted by 20 per cent of officers (2006, p. 94). Despite these differences there were no initial indications of bias either in the so-called ‘hot-stoppers’ or amongst those officers less prone to initiate public contact (2006, p. 100). This difference in the rates of use of police powers could be an interesting avenue of research where disproportionate racial stops are found in the available population. Focused training and advice should be deployed where such differences are identified. Researchers have also recently expressed concerns about increasing stops and searches of Asians in the aftermath of September 11. Aaronovitch (2004) and Tempest (2004) referred to an increase of 300 per cent in police stops and searches of Asian persons from July 2003 to July 2004 (Aaronovitch, 2004, and Tempest, 2004, cited in McGhee, 2005, p. 99). Such figures, which were released by the Home Office, coupled with the introduction of broader police powers to stop and search in terms of the Terrorism Act 2000, generated fear on the part of the Muslim community that they were being targeted by the police (Chakraborti, 2007, p. 118). Doward and Hinsliff (2004) found that the number of Muslims stopped and searched in 2003 (about 35,000) had increased significantly from the number who had been stopped three years prior to this (about 2,000). Out of this 35,000, fewer than 50 had been charged (Doward and Hinsliff, 2004, cited in McGhee, 2005, p. 99). However, Chakraborti has pointed out that it cannot be determined with certainty whether the police are targeting Muslims, as the Home Office category ‘Asian’ comprises all South Asians, not only Muslim Asians (Chakraborti, 2007, p. 118). Despite the lack of certainty about the actual numbers of Muslims stopped and searched, many Muslims perceive themselves to be policed disproportionately (Chakraborti, 2007, p. 119). Fears of police discrimination may result in the deterioration of relations between Muslim communities and the police, which will undermine police access to information concerning real terrorism suspects. Lea (2003) adopted a stance to the stop and search debate that placed him outside the statistical question of whether the police discriminate in the exercise of their powers. He maintained that the problem with the Macpherson Report (1999) was that, although it criticised the application of police powers to stop and search, it was entirely uncritical of the actual role of stop and search. He took the view that the important question should be why people are stopped in the first place, arguing that police stops are less about a concern with the detection of crime, which they are inefficient at doing anyway, than about the general surveillance of communities and social groups. This view, he contended, is substantiated by the fact that stops result in so few arrests. The real reason for stops is membership of the underclass, with race being used as a trigger for surveillance that is akin to a type of ‘border control’. Regardless of the hard statistical evidence, this type of feeling may explain the perception of

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unfair police treatment on the part of religious groups, such as Muslims. These perceptions may also be reinforced by the perceived behaviour and attitudes of police (Weller et al., 2001, p. 51). Christian organisations, on the one hand, and Muslim, Sikh and Hindu organisations, on the other hand, have reported the largest differences in experiences, with unfairness being perceived by the latter (2001, p. 51). Whilst the debate about the disproportionate use of police powers rightly continues, there is no room for complacency concerning either the plight of those who are victims of police misuse of power or the empirical grounds upon which their unequal treatment is established. Engel et al. (2002) warn of the danger that theoretical assumptions may guide empirical research. Censusbased research may have relied on the theoretical assumption that police stop along racial lines and may have used crude research methodologies to confirm already assumed theories. The ‘default position’ (Stenson and Waddington, 2004, p. 128) using a more nuanced methodology involving available rather than general populations has challenged empirical knowledge and theoretical assumptions surrounding the police victimisation of minority ethnic groups. Whatever the position, the debate is far from settled and no paradigm shift has yet taken place.

Conclusion This chapter has documented the relation between race and victimisation in three respects. It has considered the extent to which minority ethnic groups experience victimisation generally. It has found that, while there is little difference in the general level of victimisation experienced by different racial groups, certain minority groups, such as Pakistanis and Bangladeshis, experience high levels of victimisation as well as greater fear of crime. In addition, the chapter has evaluated the nature, extent and impact of racially motivated crime, finding that, although figures are decreasing, significant levels of such crime continue to exist, and that it has a particularly deleterious impact on victims. It has also highlighted the incidence of racially motivated crime in rural areas and the experiences of religiously motivated crime by Muslims in the aftermath of September 11. Furthermore, it has contended that, despite reforms introduced in the wake of the Macpherson Report (1999), police and multi-agency initiatives continue to cause secondary victimisation to victims of racially motivated crime. These reforms, as well as those introduced by the CPS, are considered fully in Chapter 13. The chapter has concluded by analysing the extent of racial discrimination in the police exercise of their powers of stop and search, showing that, whereas earlier research pointed to evidence of racial bias, more recent research employing a different methodology has found no systematic discrimination. It has nonetheless cautioned against complacency flowing from these recent findings, emphasising that the debate about police racism continues to exist.

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Questions for further discussion

• • • • •

To what extent are minority ethnic groups at greater risk of ‘ordinary’ crime? What impact does racially motivated crime have on victims and how does this affect levels of fear of crime? In what ways do the police cause secondary victimisation to victims of racially motivated crime? Critically evaluate the different studies regarding the question of whether the police racially discriminate in the exercise of their powers to stop and search. In what ways have the methodologies used to research police use of powers to stop and search recently changed in the UK and US? Has this led to any change in the findings of disproportionate use of police powers?

Chapter 6

LGBT and elderly victims

Introduction The purpose of this chapter is to explore the victimisation experienced by two groups of victims whose interests have, until recently, been marginal to the concerns of scholars as well as criminal justice agencies. The first group, lesbian, gay, bisexual and transgender (LGBT) victims, is considered at the beginning of the chapter, which documents the nature, extent and impact of homophobic and transphobic violence as well as the secondary victimisation engendered by prejudiced views and practices on the part of the police. The second group, elderly victims, is discussed in the next part of the chapter, which highlights the nature, extent and impact of elder victimisation that occurs in homes and care institutions. This part shows that, due to the extensive under-reporting of such victimisation, it rarely comes to the attention of criminal justice agencies. The second part concludes by evaluating elderly victims’ experiences of victimisation in public spaces, focusing in particular on the phenomenon of distraction burglary.

LGBT victims In the same way that minority ethnic persons frequently report feeling overpoliced and under-protected (see Chapter 5), members of LGBT communities often feel that they are disproportionately the subject of the application of indecency laws and that they are perceived as perpetrators rather than victims. In consequence, they are reluctant or embarrassed to report their experiences of victimisation for fear of police homophobia or transphobia. The terms ‘homophobia’ and ‘transphobia’ are used to describe the heterosexist fear of and bias against homosexual and transgender persons respectively. Heterosexism encapsulates the ideological oppression of LGBT persons by means of state institutions, such as the law, as well as cultural and religious beliefs and practices, which are premised on a heterosexual norm (Morrison and MacKay, 2000, p. 11). This part of the chapter evaluates the nature, extent and impact of primary

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victimisation on LGBT communities, with particular reference to the location of incidents, the victimisation of young LGBT persons and the identity of perpetrators. In addition, it assesses the degree to which incidents are reported to the police, demonstrating that victims’ perceptions of police prejudice affect reporting levels. The data contained in the surveys discussed in this part are problematic in some respects. General victim surveys document the level and prevalence of victimisation within specific time periods, such as respondents’ lifetimes and/or the year preceding the survey. Some of the surveys of LGBT victimisation are unclear about the time period in which the victimisation is reported to have occurred and are thus difficult to compare with other surveys. In addition, such surveys are less than transparent at times as to whether prevalence refers to general victimisation or victimisation because of sexual orientation or gender identity. The often ‘hard to reach’ nature of LGBT communities, particularly transgender communities, means that the sizes of the survey samples are often small – in the low hundreds (200–300) – although some samples are larger. Nature, extent and impact of LGBT victimisation The survey of 300 gay men in Edinburgh conducted by Morrison and MacKay (2000) found a 57 per cent prevalence rate over a 12-month period for all types of harassment, including being followed and receiving verbal threats, insults and abusive communications (2000, p. 23). Eighteen per cent of gay men reported physical violence over a 12-month period, ranging from being spat at and having something thrown at them to being physically and sexually assaulted (2000, p. 34). The authors point out that two-thirds of the survey sample were aged 34 and under (30 per cent more than the Scottish population as a whole) and were thus much more likely to be victimised due to their relative youth. However, this figure is six times the Scottish average and rises to 26 per cent if attempted assaults are included (2000, p. 34). Moran et al. (2004) conducted a survey of LGB groups in Bexley and Greenwich, London, using a sample of 164 respondents. They found lifetime rates of homophobic violence, harassment or threats at 69 per cent (2004, p. 21), 13 per cent being described as physically violent (2004, p. 13). In addition, 38 per cent of respondents reported having experienced similar victimisation in a 12-month period (2004, p. 36), with 14 per cent of incidents being described as involving physical violence (2004, p. 39). Lifetime rates varied significantly between Bexley (53 per cent) and Greenwich (73 per cent), as did the distribution between males and females, with higher levels of male victimisation in Bexley and similar levels in Greenwich (2004, p. 25). Annual rates varied to a lesser extent between the two boroughs, with male victimisation being higher in both areas (2004, p. 40). Frazer’s (2005) anonymised study area in Britain found an 82 per cent (n = 234) prevalence rate of homophobic incidents over three years, with verbal

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abuse being most commonly reported, and physical violence occurring at a rate of 31 per cent over the same timescale (2005, p. 9). A summary study of 32 surveys across North America found that, among the 19 that looked at general acts of violence outside specific locations, prevalence rates ranged from 13–57 per cent (Comstock, 1991, p. 36), with an average of 8 per cent being assaulted with a weapon in the eight surveys that analysed sub-categories of violence (Comstock, p. 38). Morrison and MacKay (2000) found that the male gay victims of violent incidents regarded their victimisation as having occurred because of their sexual orientation in 65 per cent of cases (2000, p. 39). While it is not always possible to perceive the motivation of the perpetrator, the language used as well as other factors, such as the location of the attack (for instance outside a gay venue), are often strongly indicative of a homophobic motivation. Morrison and MacKay also found that, although 58 per cent of interviewees experienced one incident of violence a year, 30 per cent experienced two incidents and 12 per cent were victimised repeatedly, experiencing three or more incidents (2000, p. 34). Repeat victimisation levels in Moran et al.’s survey of Bexley and Greenwich were over 75 per cent for more than one violent incident and more than 50 per cent for two acts of violence perpetrated against respondents (2004, p. 38). Other studies, such as Barlow’s (2003) in Newham, London (224 respondents), draw attention to the fact that LGBT groups suffer and inflict victimisation in the form of domestic violence. In this study the prevalence rate amongst LGBT victims for domestic violence was 18 per cent (2003, p. 3). In the US, Hanson and Maroney (1999) found domestic violence prevalence rates at 10 per cent for gay men and 23.7 per cent for male bisexual respondents (1999, p. 97). Transgender persons experience victimisation in a unique way, due to the intersection of discrimination on the basis of gender, sexual orientation and gender identity. However, in view of the difficulty of obtaining data, the nature of this victimisation is largely hidden. The dearth of such data represents the biggest gap in knowledge in this area. Qualitative research conducted by Moran and Sharpe (2004) in Australia revealed that transgender people are not immune from discrimination from within the gay and lesbian community (2004, p. 398). According to the victimisation co-ordinator in Frazer’s study (2005), transgender people report a disproportionate amount of victimisation compared with other LGB groups (2005, p. 13). Minority ethnic lesbian, gay and bisexual groups also experience victimisation in a unique way, due to the intersection of discrimination on the basis of race and sexual orientation. In a survey of 145 black, Asian and mixed-heritage LGB interviewees, GALOP (2001) found that 68 per cent had been victims of homophobic verbal abuse, 10 per cent had been victims of physical violence and 4 per cent had been victims of sexual violence over an unspecified time (2001, p. 38). In addition to these disturbing statistics, the survey found that racism was an even more prevalent source of victimisation. Black LGB groups had

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prevalence rates for racist verbal abuse at 81 per cent and for racist physical violence at 24 per cent (2001, p. 38). Mixed-heritage LGB groups had a higher prevalence rate for all forms of victimisation (which is reminiscent of the general victimisation they experience, as highlighted in Chapter 5), with black and Asian groups following in that order (2001, p. 40). Women were more frequently subject to verbal abuse and damage to property whilst men had higher levels of physical victimisation (2001, p. 40). Dunbar (2006) conducted a study of 551 cases reported over 24 months to the Los Angeles County Human Relations Commission, which is responsible for overseeing data on hate crime classifications from all police departments in Los Angeles County, including the Los Angeles Police Department, Los Angeles Sheriff’s Department and other surrounding police authorities (2006, p. 326). The study found that, overall, 30 per cent of all hate crime victims in that period were gay men, 6 per cent were lesbians and fewer than 1 per cent were transgender persons (2006, p. 329). Of the gay and lesbian victims, half were identified as white, 24 per cent as Latino, 9 per cent as African-American and 5 per cent as Asian Pacific (2006, p. 329). Compared with other hate crimes, such as those involving race or religion, those perpetrated against lesbians and gay men were measured as being more severe for crimes against the person (2006, p. 329). The study also found that race and gender influenced the severity of victimisation for LGB groups. Minority ethnic lesbians, in particular, were disproportionately victims of interpersonal violent crime (2006, p. 331). Comstock’s findings from the US were slightly different, with lesbians of colour reporting slightly higher rates of violent victimisation and robbery than white women (Comstock, 1991, p. 43). Gay men of colour had similar levels of victimisation to lesbians of colour. However, they experienced higher levels of violent victimisation and lower levels of general victimisation than gay white men (1991, p. 43). Yet a 196-sample survey from across the US of LGB youths under 21 by Pilkington and D’Augelli (1995) found that white youths experienced higher levels of threat, physical violence and repeated physical violence than minority ethnic youth (1995, p. 40). Perpetrators of homophobic (and transphobic) crimes have traditionally been regarded as strangers. The Edinburgh survey noted that nearly 75 per cent of violent acts were committed by strangers (Morrison and MacKay, 2000, p.39), with an average of three perpetrators (2000, p. 37). Comstock (1991) concurred, finding that two-thirds of perpetrators were strangers (1991, p. 57) but documenting lower numbers of perpetrators (1991, p. 63). However, the Bexley and Greenwich survey (Moran et al., 2004) found significant differences in the perpetrator/victim relationship. It showed that across both boroughs, respondents knew the perpetrators in two-thirds of cases (2004, p. 43). Perpetrators included partners, ex-partners, family and household members, neighbours, work colleagues, and people at school or college (2004, p. 44). These findings reinforce an earlier analysis of 101 homophobic incidents in January 2001 by the Metropolitan Police Service (Metropolitan Police Service, 2001),

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which found that only 15 per cent of perpetrators were strangers, whereas a considerably larger percentage were local youths (27.7 per cent) and neighbours (20.8 per cent) (2001, p. 2). Taken together, these findings challenge the assumption (albeit not conclusively) that homophobic violence is perpetrated by strangers. The location of victimisation also varies to some extent, correlating with the type of perpetrator. In Morrison and MacKay’s Edinburgh survey, being targeted near a gay venue was both a reason for believing that the violence was homophobic and, especially amongst those who were open about their sexuality, the most likely place to be victimised (2000, pp. 39–40). In addition, for minority ethnic LGB groups ‘the street’ was by far the most common location for all forms of homophobic victimisation (GALOP, 2001, p. 41). By contrast, in Moran et al.’s London survey two-thirds of respondents experienced their victimisation in or around their home, and ‘only’ one in eight suffered violence in or near a LGBT venue (Moran et al., 2004, p. 46). Interestingly, both the GALOP study and the research by Pilkington and D’Augelli indicated high levels of victimisation at work and at school (GALOP, 2001, p. 41; Pilkington and D’Augelli, 1995, p. 43). The latter study indicated that 25 per cent of gay or bisexual youths had been victimised at school and that 5 per cent had been victimised by their teachers (1995, p. 54). This finding that schools are a site of homophobic victimisation is further evidenced by a GALOP (1998) survey of 202 LGB persons under the age of 25 years in the London area. The research found that up to the age of 25 (which is admittedly a longer period than is covered by most surveys) young LGB individuals had suffered prevalence rates of 83 per cent for verbal abuse, 47 per cent for physical abuse (ranging from being spat at to being beaten up), 41 per cent for sexual abuse (including being groped, flashed, assaulted or raped), and 31 per cent for harassment, such as abusive communications (1998, pp. 12–16). Minority ethnic persons reported high levels of physical violence but similar levels of other victimisation (1998, p. 23). With the exception of cases of sexual abuse, respondents said they had been targeted because of their sexuality in 52–71 per cent of incidents (1998, p. 23). Perhaps the most revealing finding was that for young LGB persons the school was by far the most dangerous place (more so than the street) for all types of victimisation, apart from sexual abuse and harassment (1998, pp. 30–2). Barlow (2003) reported similarly high levels of bullying at school in Newham (57 per cent) (2003, p. 7). Unsurprisingly, pupils and students constituted the largest offender group for physical abuse and harassment (1998, pp. 33–4). The impact of victimisation ranges from physical injury and behavioural adaptation to less obvious psychological reactions, self-blame and diminished trust (Pilkington and D’Augelli, 1995, p. 34). Research has shown that gay men and lesbians who have experienced verbal abuse may fear physical violence to the extent that they change their everyday behaviour, and that some may even avoid public places entirely (Spalek, 2006, p. 76). Victims’ identity may also be

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severely affected, especially where their ‘in-group’ identity membership is ambivalent, resulting in a substantial disruption of the cogence of their identity (Dunbar, 2006, p. 335). This may cause further adverse consequences, such as identity reversion, leading to internalised feelings of self-blame and stigmatisation (2006, p. 335). At worst, victims may attempt suicide. Secondary victimisation As with victims of racially motivated crime (see Chapter 5), LGBT persons’ experiences of victimisation are not restricted to the crimes and their impact, but extend to the treatment they receive at the hands of the police. Apart from documenting high levels of victimisation, the surveys discussed above have been largely unanimous in finding that the key reasons for not reporting homophobic crime are poor LGBT/police community relations and individual experiences of police homophobia. Thus 26 per cent of minority ethnic LGB respondents in the GALOP (2001) survey chose not to report their victimisation as they thought that the police would not take it seriously or do anything about it (2000, p. 36). Twenty per cent of respondents in Bexley and one in ten respondents in Greenwich did not go to the police for ‘fear of abuse’ (Moran et al., 2004, p. 57). In the Edinburgh survey only 37 per cent of victims reported violent crime to the police (Morrison and MacKay, 2000, p. 41), with the vast majority choosing not to do so. One third of respondents in the Edinburgh survey claimed that poor experiences of the police or expectations of little police interest led to non-reporting (2000, p. 42). Other, less common reasons for not reporting included embarrassment, lack of injury and a belief that the matter was private or too trivial (Morrison and MacKay, 2000, p. 42; Moran et al., 2004, p. 57). Perhaps more disturbingly, Comstock’s (1991) US study, albeit fairly dated, showed that the police themselves were seen as the third highest set of perpetrators, ranked at 8 per cent (1991, p. 57). Whilst this is not representative of more recent findings, relations between the police and LGB communities remain poor and the policing of indecency laws continues to be a source of friction (see generally Morrison and MacKay, 2000, Chapter 3). Although there is very little research specifically documenting transgender victims’ perceptions and experiences of the police, the available evidence suggests that transphobic attitudes may inform police responses to such victims. Frazer noted that the police interviewed in his study felt more comfortable with victims from the lesbian and bisexual communities than with transgender persons and gay men (2005, p. 15). Inadequate training and understanding may cause the police to lack confidence in their ability to provide a competent service to transgender victims (2005, p. 14). Furthermore, police perceptions of ‘inappropriate behaviour’ on the part of victims may lead them to treat victims as suspects or question the legitimacy of their complaints (Moran and Sharpe, 2004, p. 408).

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The poor relations between the police and LGBT communities, which result in under-reporting, have proved difficult to rectify, due to perceptions on the part of LGBT communities that the police are institutionally homophobic (McManus and Rivers, 2001, cited in McGhee, 2005, p. 129). Such perceptions may lead to victims believing that the police will not take their victimisation seriously (as indicated above), that they will react in a homophobic way, that details of victims’ sexuality will be made known and that victims will have to discuss their sexuality with the police (McGhee, 2005, p. 129). The extent to which these perceptions reflect the reality of police practice, despite efforts to introduce positive policies for policing homophobic and transphobic crime, is the subject of more detailed discussion in Chapter 13.

Elderly victims The 1878 painting by William Yeames entitled ‘When did you last see your father?’ displays a boy standing before a seated panel of Parliamentary English civil war soldiers who are inquiring into the whereabouts of the boy’s father. The painting depicts children as personifying the ideals of honesty and truth and shows how the use of such qualities may lead to disaster for the boy’s father. It represents the innocent child at the mercy of adults. Although many children are indeed the innocent victims of adult criminal activity, the extent to which elderly people are victimised by their adult children or by other adults is often ignored in criminal justice policy as well as in popular consciousness. The high levels of public concern for the protection of children, such as demands for laws disclosing the whereabouts of child sex offenders, have been unmatched by similar concern for the protection of elderly people. This part of the chapter commences with a brief overview of the history of the victimisation of elderly people. Thereafter, it examines the present ways in which elderly persons are victimised in their homes, in care institutions and in public spaces. History of elder victimisation Brogden and Nijhar (2000) draw attention to two nostalgic myths surrounding the victimisation of the elderly. The first is that the elderly received better treatment in pre-capitalist societies than they do at present and the second is that societies outside the capitalist West provide better care for their elders than Western industrial countries (Brogden and Nijhar, 2000, p. 24). Brogden (2001) has shown that even in early hunter-gatherer communities, which were highly mobile, elderly immobile persons were often abandoned or left behind as they could not keep up or hunt and gather effectively (2001, p. 60). Whilst later societies may have venerated their elders and treated them with affection, this did not prevent them from being abandoned on ice floes or in the wilderness, or

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from being killed by their younger kin, albeit in a ceremonial fashion (2001, p. 61). Perhaps the most well-known type of pre-industrial elder victimisation, which often had fatal outcomes, was that consequent upon being denounced as a witch. Witchcraft trials were common throughout Europe and North America, but were not exclusive to these continents (2001, p. 64), especially in the seventeenth century. In early industrial societies the abandonment of the elderly by their offspring often hastened their death. The great patterns of migration from Europe to the New World of South and North America often led to the young leaving the old to fend for themselves, with only intermittent financial support even if the emigrant was successful (2000, p. 29). The second ‘abandonment’ of the elderly was to the workhouses and poorhouses of Georgian, Victorian and Edwardian England. These local community ‘facilities’ were designed to deter usage by any but the most desperate paupers and consequently the poorest elderly persons formed the largest group of people left there, either willingly or regretfully, by their not much richer offspring (2001, p. 96). Brogden and Nijhar (2000) also challenge the second assumption that nonWestern societies provide better care for their elders than Western industrial societies. They cite examples of elder abuse in ‘developing’ societies as well as non-Western capitalist societies, such as Japan, where even the Confucian ideals of filial piety are offset by the realities of inter-generational relationships (2000, p. 35). Brogden defines the extreme end of this ageist victimisation, namely the deliberate killing of elders because of their age, as geronticide (2001, p. 22), subsequently broadening it to include death-hastening (2001, p. 63). Nature and extent of elder victimisation: senescent victimisation The history of elder victimisation has unfortunate parallels with the present. The House of Commons (2004) Second Report on Elder Abuse observed that the recognition of such victimisation is approximately 20 years behind that of child abuse (2004, para 1.3). Brogden and Nijhar make the point that elder victimisation has taken longer to move from the health and social work discourse of abuse to the rights-based discourse of victimisation, which requires a criminal justice response (Brogden and Nijhar, 2000, p. 14; see Chapter 13). The definition of elder victimisation and the methods of identifying its incidence are still in transition. Although research has been conducted on the subject for a number of years, the literature has begun to increase only since the turn of the century. The Department of Health (2000) report No Secrets identified different forms of elder victimisation. These forms are physical abuse (hitting, kicking and misuse of medication, which is sometimes placed in a separate category), sexual abuse (rape, sexual assault and other sexual acts), psychological abuse (emotional abuse, threats, blaming and verbal abuse), financial abuse (theft,

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fraud, transfer of property or benefits, or change of wills), neglect (ignoring or withholding health, social or other types of care or services, or withholding food) and discriminatory treatment (harassment, slurs or similar treatment) (2000, para 2.7). It is important to bear in mind that the analysis of elder victimisation is still evolving. Other societies may define such victimisation differently or emphasise certain forms of victimisation more than others. Such differences in the definition and perceptions of elder victimisation will affect the likelihood of incidents being reported by victims and witnesses and may even affect victims’ knowledge of their status as victims (Malley-Morrison et al., 2006, p. 2). Research from Japan has indicated that the formulation of a general definition is problematic because of low levels of general awareness of elder victimisation (Arai, 2006). In countries such as Russia and Germany, the term ‘abuse’, which is often used to describe this type of victimisation, has no indigenous equivalent (Puchkov, 2006; Konig and Leembruggen-Kallberg, 2006). Furthermore, different forms of elder victimisation are given different emphasis in different societies. For instance, physical victimisation is perceived as the biggest problem in Japan (Arai, 2006), in Germany (Konig and Leembruggen-Kallberg, 2006) and in the community of Ashkenazi Jews in Israel (Rabi, 2006), whereas the Sephardic Israeli Jews (Rabi, 2006) and Brazilians (Bezema-Flanders and Clark, 2006) view psychological victimisation and neglect as the most important. Despite these differences in definition and emphasis, however, it is clear that elder victimisation occurs predominantly in private homes and care institutions, taking place to a lesser, albeit nonetheless significant, extent in public spaces. Victimisation in private The prevalence of elder victimisation documented in research varies depending on the place in which it occurs and the type of methodology employed, amongst other variables. Recent research in the UK, sampling 2,100 respondents, found an overall victimisation prevalence (including neglect) of 2.6 per cent by family, friends or care workers (O’Keefe et al., 2007, p. 3). Neglect was the most prevalent type of victimisation, followed by financial, psychological, physical and sexual abuse (2007, p. 4). The perpetrators were most often the partners or spouses of the victim (51 per cent) or another family member (49 per cent) but also included care workers (13 per cent) and other close friends (5 per cent), and sometimes involved more than one person or occasion (2007, p. 4). Women were more likely to be victimised than men. However, apart from neglect, victimisation increased as men became older whilst it decreased for older women (2007, p. 37). Men in the oldest age group of over 85 were also more likely to be victims of financial abuse. All forms of victimisation varied by socio-economic status and marital status, with those who had been in more routine occupations and those who were separated or divorced being preyed upon more heavily than

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those who had formerly been small employers, or who had worked for their own account, and those who were widowed (2007, p. 37). Different parts of the UK displayed small differences, with Scotland having a slightly higher rate, due mainly to higher levels of neglect (2007, p. 39). There seemed to be higher rates of neglect amongst the one in four elderly who were reliant on others for some form of assistance, with a few (6 per cent) reporting two separate types of victimisation (2007, p. 42). Most victimisation was perpetrated by partners and family members, but care workers (31 per cent) were seemingly heavily involved in financial victimisation (2007, p. 57). Men were generally the victimisers (74 per cent), which accords with general patterns of offending, but this varied with the type of victimisation. In the case of financial mistreatment, in particular, male (56 per cent) and female (44 per cent) perpetration was much more even (2007, p. 59). Interestingly, when the O’Keefe et al. study broadened the parameters of its investigation to include neighbours and acquaintances, victimisation prevalence rose significantly to 4 per cent overall (2007, p. 72). The addition of such persons also cast new light on who the perpetrators were, with neighbours and acquaintances becoming a significant new group of offenders (33 per cent) compared with other groups, such as partners (35 per cent) and family members (33 per cent). In regard to interpersonal (physical, psychological and sexual) victimisation, neighbours and acquaintances became the largest group of offenders (45 per cent) (2007, p. 76). If these figures were to be extrapolated to the wider population, 1 in 25 of those in the over-66 population would be victimised each year. In addition, the definition of perpetrator would be broadened beyond those who are perceived to be in close relationships or positions of trust with the victim (2007, p. 81). As mentioned above, victimisation levels may vary significantly across studies and areas researched. A study conducted in four districts in the Saratov region of Russia illustrates this variance, finding much higher levels of victimisation of the elderly. Puchkov’s survey of 2,881 women over the age of 60 found much higher levels of victimisation (nearly 29 per cent) than in the UK, albeit over two years, from 2004–2006 (Puchkov, 2006, p. 6). The most prevalent form of victimisation across the four districts, and within each one, was psychological victimisation, which was followed by financial and economic abuse, neglect and, lastly, physical abuse (sexual abuse was not included), with rates ranging from 30–52 per cent and 25–32 per cent for the two most prevalent forms (2006, p. 10). The perpetrators were often known to the victim, with children being the predominant offender group (28 per cent), followed by other family members (12 per cent) and grandchildren (8 per cent) (2006, p. 10). Elderly victimisation thus not only differs across countries but may also vary significantly within regions. Victimisation of the elderly may also be affected by other factors, such as whether or not the person is a recent immigrant. Iecovich’s (2005) study of Jewish immigrants from the former Soviet Union to Beer Shiva in the Negev

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region found slightly higher rates of general victimisation amongst this immigrant group, with a higher risk of neglect but a lower risk of physical victimisation, compared with the general elderly population (2005, p. 441). The perpetrator groups differed slightly from those who had victimised the general elderly population, with more daughters and other family members but fewer partners involved in victimisation (2005, p. 441). Vulnerability to victimisation amongst immigrants may be affected by a number of factors, including difficulties with communication, access to services, adaptation to a new environment and isolation (2005, p. 436). The impact of elder victimisation in private homes may take different forms. Over three-quarters of those interviewed in O’Keefe et al.’s study were visibly and emotionally upset or angry, whilst just under half said they had reacted in a physical, verbal or confrontational manner (2007, p. 63). One in three respondents stated that the incident had a very serious effect, whilst 24 per cent thought that it was not serious and the remainder thought it was serious (2007, p. 64). Indeed the effects of even financial victimisation may be quite extreme, ranging from emotional distress and change of residence to increasing reliance on others, all of which may result in a reduced quality of life and perhaps even a diminished life expectancy (Kemp and Mosqueda, 2005). The scale of this type of financial victimisation appears from research by Action on Elder Abuse, which analysed 471 separate incidents involving the theft of £2 million as well as the loss of 18 houses that had been taken from their rightful owners (Action on Elder Abuse, 2007). The deleterious effects of elder victimisation in the home are exacerbated by the isolation and vulnerability that result from the extensive under-reporting of such victimisation (see below). Victimisation in private institutions Many studies, such as the O’Keefe et al. study discussed above, cover victimisation in private households only and do not include nursing and care facilities. Goergen’s (2004) study of nursing homes in Hesse, Germany, was partially based on self-report interviews with nursing staff. He found that cases of psychological and verbal victimisation and neglect were much more commonly reported than cases of inappropriate restraint and physical aggression (2004, p. 17). He also found a tendency on the part of some interviewees to ‘normalise’ verbal abuse, ascribing it to the exigencies of the job, and to view cases of neglect as an issue of resources rather than as individual failings (2004, p. 18). Whilst the use of mechanical restraints was not reported, nurses did report more subtle forms of victimisation, such as arranging furniture to restrict patients’ movements, or ignoring residents when they needed assistance to get out of a chair or a bed (2004, p. 19). In addition, psychoactive medicines were used to sedate patients who were loud, harassing nurses, resisting care, behaving aggressively or wanting to leave the facility. Such medicines were

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emblematic of care focused not on autonomy but on security (2004, p. 19). These findings were confirmed by inspectors’ reports documenting neglect in almost 40 per cent of on-site checks (2004, p. 23). Victimisation may also occur at the hands of another resident. In their New Haven (Connecticut) study, Lachs et al. (2007) found that the police had seen 42 residents out of a sample of 747 (5.6 per cent) concerning 79 individual incidents in care institutions. Virtually all of these incidents (90 per cent) involved some form of assault and a third resulted in an injury (2007, p. 842). Such resident-on-resident violence seemed to revolve around competition over resources, be it a favourite chair in the television lounge or a place in the dining room (2007, p. 843). A much more disturbing picture is painted by Payne and Gainey (2006) in their US research based upon the records of the Medicaid Fraud Control Units. These units are state-based agencies, often located within the Attorney General’s office, that attempt to investigate and prosecute crimes occurring in nursing institutions (2006, p. 70). In contrast to Goergen’s research in Germany, offenders in more than two-thirds (67.7 per cent) of cases were investigated for physical victimisation and in nearly 10 per cent (9.7 per cent) of cases for sexual offences (2006, p. 74). The authors found little evidence of institutional factors (such as the size of the institution) or staff characteristics (such as age or gender) having played a role in the abuse. Instead they placed offenders in three categories, namely stressed-out abusers, pathological tormentors (due to the lack of provocation or the seriousness of the victimisation) and serial abusers (offenders with a history of such acts) (2006, p. 73). Most of the offenders fell into the latter two categories with the likelihood of some overlap where tormentors were serial offenders who happen to have been undetected. However, both groups were perceived to have been motivated by a desire for power and control (2006, p. 77). This approach questions policies and strategies that rely on pay rewards and enhanced training. The authors prefer a routine activities approach that seeks to prevent the ‘vulnerable situation’ by introducing management staff who are more highly trained and hands-on, and using more criminal background checks (which are still not mandatory in many US states) and psychological testing (2006, p. 78). This routine activities approach may be criticised for overlooking the structural underpinnings of modern care for the elderly. Brogden and Nijhar (2000), using a vision of the ‘market society’ developed by authors such as Elliot Currie (1996), point to the exponential privatisation of the ‘care economy’ as introducing a conflict between the ideal of care and the reality of economic profitability (2000, p. 106). Whilst they admit that this ‘profitable caring’ may not directly cause victimisation, they contend that it may set in train a number of mechanisms that affect staff training and the numbers and quality of staff deployed (2000, p. 108), increasing the likelihood of victimisation in a deteriorating ‘criminogenic environment’ (2000, p. 109). Quite how this relates to serial offenders is not entirely clear and, indeed, there seems to be a certain impasse in

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these two explanations regarding the perceived characteristics of the offenders and the approach that is needed to deal with them. The hidden nature of elder victimisation in private: under-reporting levels There are a number of barriers to the reporting of elder victimisation in both private homes and nursing institutions (Mowlam et al., 2007, p. 33). Such barriers may relate to the elderly person’s personal circumstances, which may include low self-confidence, physical frailty (occasioning reluctance to confront), bereavement (depriving them of someone with whom to discuss their decision to report and increasing their stress levels) and a belief that the issue is not sufficiently serious (2007, p. 34). Other barriers relate to concerns about the impact of reporting, including the fear of isolation (such as partner separation or family estrangement), escalating the victimisation, being perceived by others as ‘making a fuss’, and embarrassment, particularly in sexual cases (2007, p. 35). The existence of these barriers reinforces the hidden nature of elder victimisation. Whereas the vast majority of victims (70 per cent) in O’Keefe et al.’s (2007) study sought help from family or members of the social work or health professions, only 1 in 25 contacted the police. A significant minority (30 per cent) did not report the incident at all (2007, p. 65). In addition, most incidents fail to come to the attention of Adult Protection. O’Keefe et al. compared the rates of victimisation they found with official referral rates to Adult Protection in 2006. In the Wakefield area, for example, 39 cases were reported to Adult Protection in 2006, whereas, judging from the study’s documented 2.6 per cent rate of victimisation, the number of cases should have been around the 1,250 mark (2007, p. 81). Whilst it is impossible to know the true rate, there are good grounds for suspecting that elder victimisation is extensively under-reported. The limited reporting of incidents to the police, in particular, has the consequence that, as was the case with domestic violence prior to recent reforms, elder victimisation in the home is largely a hidden crime, attracting little response from criminal justice agencies (see Chapter 13). Victimisation in public Although elderly people are at the greatest risk of victimisation in private places, they also suffer ‘ordinary’ crime in public spaces. This section discusses their experiences of such ‘ordinary’ victimisation, focusing in particular on distraction burglary. In 1999 people aged 60 and above experienced 14 per cent of crime whilst making up approximately 20 per cent (10,817,000) of the population of England and Wales (Chivite-Matthews and Maggs, 2002, p. 6). Households headed by

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30–59-year-olds faced the majority of acts of vandalism and burglary (2002, p. 7). Persons aged 16–29 were subject to violence at a rate that was 17 times higher than those aged 60 and above, whilst 30–59-year-olds had a rate five times that of more senior citizens (2002, p. 9). Older age groups nevertheless had levels of concern or fear about most types of crime that were similar to the levels of other groups (2002, p. 20). The elderly were more likely to think that crime across the country had risen in the last two years compared with 16–24-year-olds (Lovbakke, 2007, p. 97). There has been a tendency to argue that, because elderly people fear crime more than their risk of victimisation suggests they should, their fear is disproportionate. This argument ignores several important factors. First, surveys often fail to take into account the fact that the elderly, as indicated above, may have been victims of many more crimes in private spaces and that this may affect their fear of crime in public spaces. Second, surveys rarely encompass the effects of a longer lifetime experience of crime, some of which may have occurred outside the survey period. Such incidents may be remembered and may affect reported levels of fear of crime (Brogden and Nijhar, 2000, p. 73). Furthermore, surveys do not take account of the fact that many elderly people may have witnessed an area deteriorate over a number of years, with local crime rates rising and signs of disorder becoming visible, which may add to their fear of crime. The fact that the elderly report higher levels of fear of crime than their risk of victimisation in public spaces suggests should therefore not be dismissed as irrational. Although elderly people are generally at a lower risk of victimisation in public spaces than other age groups, a particular type of burglary, known as distraction burglary, affects the over-60s more than younger age groups. Distraction burglary occurs when a person gains access to premises by tricking, distracting or pushing past the occupier (Thornton et al., 2003, p. 1). Budd (1999) stated that 14 per cent of burglaries suffered by those aged 60 and over fell into the category of distraction burglaries, whereas only 6 per cent of burglaries experienced by those under 60 fell into that category (1999, p. 22). Since 2003 distraction burglary has been recorded as a separate sub-category of burglary in official figures. The majority of these offences are committed during the daytime, with the most frequently used pretences including posing as gardeners, plumbers, builders, people in need of assistance and, most often, officials from agencies such as water services (Thornton et al., 2003, p. 20). Perhaps surprisingly, few people (14 per cent) asked to see identification and, unsurprisingly, few perpetrators (6 per cent) offered any (2003, p. 22). Owneroccupiers were less at risk than those renting public housing and those who lived alone were also more vulnerable (2003, p. 25). There were also certain external ‘tell’ signs or risk factors of vulnerability, such as visible hand rails, the absence of burglar alarms, neglected front gardens or house decor, the visibly poor condition of neighbouring homes, and doors that were out of sight or obscured from the street (2003, pp. 25–6). Victims who had experienced

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uninvited burglars pushing past them reported high levels of immobility (2003, p. 26). The impact of distraction burglary on elderly victims may be severe. Nine per cent of victims experienced post-traumatic stress disorder which lasted one month after the burglary and 2.3 per cent continued to experience such PTSD four months after the burglary (2003, p. 33). Victims of uninvited burglary exhibited higher levels of PTSD than those who had either invited the caller in or had repelled him/her (2003, p. 34). Only a small number of victims (3 per cent) had taken new forms of medication, with 6 per cent of visits to the general practitioner concerning mental health or emotional issues (2003, p. 35). A substantial minority (40 per cent) reported a general impact on their quality of life as well as a perception of substantially increased crime rates (fear of crime), although this did not extend to envisaging further personal victimisation (2003, p. 36). However, a significant number of elderly victims of distraction burglary demonstrated substantial levels of fortitude (2003, p. 40). The elderly are often the subjects of binary representations as figures to be venerated, on the one hand, and figures to be treated with disdain, on the other. Ageist attitudes should not permit society to undermine the seriousness of crimes against the elderly. In 1950 8 per cent of the US population was 65 and above. Their proportion of the current US population is 13 per cent and by 2011, when the ‘baby boomers’ reach 65, the figures will have increased to 20–25 per cent (1 in 5 or 1 in 4) of the population (Kemp and Mosqueda, 2005, p. 1127). At the time of writing there are approximately 9 million people over the age of 65 in Britain (15 per cent of the population). By 2066 this number will have risen to approximately 14.5 million, nearly a quarter of the UK population (Brogden, 2001, p. 30). The elderly own a disproportionately large share of the country’s wealth, with substantial assets derived from property ownership, savings and investments, which may increasingly make them the targets of financial victimisation by family members as well as strangers. Furthermore, their vulnerability, particularly as regards disabilities linked to dementia, may increase with age. Therefore, although societal recognition of the problem of elder victimisation may be increasing, the scale of such victimisation may, like the proportion of elderly people in the population, be increasing even more rapidly, demanding a concerted criminal justice response (see Chapter 13).

Conclusion This chapter has demonstrated that recognition of the victimisation of LGBT and elderly persons has been slow to develop and that much more research is needed to document the nature, extent and impact of these forms of victimisation. Homophobic and transphobic victimisation differ in one sense from the other forms of victimisation discussed in this book as they affect the core of victims’ identities and notions of self, frequently engendering self-blame for the

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victimisation. Due to the persistence of societal prejudice, LGB and particularly transgender victims often choose not to report incidents. In addition, poor relations with the police, due to perceptions of police homophobia and transphobia, exacerbate low reporting levels. Although elder victimisation takes place in many different environments, including public spaces, it occurs predominantly in private homes and institutions. The incidence of such victimisation will undoubtedly increase with the growing proportion of elderly people in Western societies. The barriers that exist to the reporting of elder abuse render it a particularly hidden crime. Despite the fact that both these forms of victimisation may have particularly severe consequences for victims, they thus receive inadequate attention from criminal justice agencies. Chapter 13 critically evaluates existing criminal justice responses to LGBT victimisation and advocates the introduction of a systematic criminal justice policy for elder victimisation.

Questions for further discussion

• • • • • • •

What kinds of victimisation affect LGBT persons most severely? Where do these incidents occur and who commits them? How does the fact that the victim is a young LGBT person affect the type of location and the type of perpetrator involved? What are the reasons for the poor relations between LGBT victims and the police? What types of victimisation are relatively unique to the elderly? How do some of the locations of elder victimisation differ from the locations of other forms of victimisation? What are the greatest barriers to the reporting of elderly victimisation?

Part II

Legal responses to victimisation

Chapter 7

The development of a victims’ rights discourse

Introduction This chapter assesses the measures that have been adopted by the Council of Europe concerning the rights of victims of crime and analyses the way in which the European Court of Human Rights (ECtHR) has interpreted the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) to include victims’ rights and interests. In addition, it evaluates the approach that has been taken to victims’ rights in English law and policy, and considers the extent to which the jurisprudence of the ECtHR has been followed by the English courts. One of the key characteristics of a right is that it enables the right-bearer to institute legal proceedings for its enforcement. This chapter shows that, whereas the Council of Europe and the European Court of Human Rights are moving to the recognition of enforceable rights for victims, English law is, with certain limited exceptions, reluctant to follow suit. In order to demonstrate that this movement to enforceable rights is not restricted to Europe, the chapter highlights the recent recognition of enforceable victims’ rights in the American Crime Victims’ Rights Act 2004 (CVRA). It contends that English law ought to introduce enforceable rights for victims in order to bring the UK into line with such international trends. However, it draws attention to the fact that, even if such enforceable rights are recognised, they may be inaccessible to certain groups of victims, such as victims of corporate crime, whose interests have been overlooked, as well as victims from socially unequal groups, whose interests have, until recently, been marginalised. The introduction of enforceable rights must thus be accompanied by measures designed to facilitate their accessibility to victims from such groups. The victims’ rights under consideration, which form the basis of the subsequent chapters in this book (apart from Chapter 12, which deals with restorative justice), are the following:

• •

the right to receive support and assistance (Chapter 8); the right to receive information concerning the pre-trial and trial process,

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the outcome of the trial and the subsequent release of the offender (Chapter 9); the right to receive protection in appropriate circumstances, including instances where the victim is afraid to testify or fears intimidation by the offender (Chapter 9); the right to participate in the pre-trial and trial proceedings (Chapter 10); the right to compensation (Chapter 11); the right to freedom from discrimination in the exercise of the above rights (Chapter 13).

Although this chapter refers to some of these rights, the extent to which English law has given effect to them will be discussed fully in subsequent chapters.

European jurisprudence on victims’ rights The work of the Council of Europe and the ECtHR has been central to the development of victims’ rights in Europe. This section considers the primary Council of Europe instruments and ECtHR cases dealing with victims’ rights/interests. Council of Europe The Council of Europe has formulated victims’ rights in two kinds of instruments. The first, Recommendations of the Committee of Ministers, are not binding, but have nonetheless played an important role in raising states’ awareness of victims’ rights. The second, the Framework Decision on the Standing of Victims in Criminal Proceedings (2001/220/JHA), is binding on Member States. Although the Recommendations are briefly discussed in this section, the focus of the discussion is on the Framework Decision. The first Recommendation adopted by the Committee of Ministers of the Council of Europe concerning victims of crime, Recommendation No. R (85) 11 on the Position of the Victim in the Framework of Criminal Law and Procedure (1985), emphasised the importance of providing information to victims concerning, inter alia, the date and place of the hearing, opportunities to claim compensation and the availability of legal assistance (article 9). In addition, it recommended that information concerning the victim’s injuries and losses should be made available to the court to enable it to take into account the victim’s need for compensation in determining sentence (article 12). It also provided that victims should be able to request a review of a decision not to prosecute, and be granted the right to institute a private prosecution (article 7). However, it did not recommend the introduction of enforceable rights for victims or advocate the active participation of victims in criminal proceedings. Its provisions represented the beginnings of a European recognition of the importance of addressing victims’ needs and including their perspectives in the criminal justice process.

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Recommendation No. R (87) 21 of the Committee of Ministers on Assistance to Victims and Prevention of Victimization (1987) dealt with the provision of support and assistance to victims outside the criminal justice system. It has recently been replaced by Recommendation Rec (2006) 8 on Assistance to Crime Victims (2006), which is placed firmly within a victims’ rights framework. Article 2 provides that states must ensure that victims’ rights are recognised and respected with reference to human rights, particularly the rights to ‘security, dignity, private and family life’ and that the measures in Rec (2006) 8 must be ‘made available to victims without discrimination’. These measures include duties on the part of Member States:

• • •

to provide victims with medical, psychological and social assistance and to ensure that vulnerable victims have access to special measures to assist them in testifying (article 3); to ensure that victims have access to information about support services, court procedure, protection, legal advice, etc. (article 6); and to provide compensation to victims of serious, intentional, violent crimes and their families if the victim has died (article 8).

Although Rec (2006) 8 is not binding on Member States, it is nonetheless significant as it expands upon and concretises the rights contained in the Framework Decision (the relevant provisions of Rec (2006) 8 are discussed in subsequent chapters). The Framework Decision was adopted by the Council of Europe in 2001 in pursuance of article 34(2) of the Treaty on European Union (TEU). Article 34(2)(b) provides that, in order to approximate the laws and regulations of Member States, the Council of Europe may adopt framework decisions which are binding as regards ‘the result to be achieved’ but not as to the ‘form and methods’ of achieving such results. Framework decisions do not have ‘direct effect’. The Framework Decision accordingly forms part of Community law. It grants victims several rights, including the following:

• •

• •

the right to receive ‘information of relevance for the protection of their interests’ throughout the criminal justice process (article 4; see Chapter 9); the right to protection, particularly as regards their safety and privacy, including, where necessary, the right to testify in a manner that shields them from ‘the effects of giving evidence in open court’ (article 8; see Chapter 9); the right to have the possibility of being heard and to give evidence safeguarded (article 3; see Chapter 10); and the right to compensation (article 9; see Chapter 11).

The extent to which these rights are enforceable appears from the decision of

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the European Court of Justice (ECJ) in Criminal Proceedings Against Pupino.1 The ECJ held that the principle of harmonious interpretation (indirect effect) applies to framework decisions (Fletcher, 2005, p. 872) and thus that the Framework Decision obliges national authorities, particularly national courts, to interpret domestic law ‘in conformity with Community law’ (para 34). However, the interpretation must accord with Convention rights, particularly the right to a fair trial (para 59), and may not result in ‘an interpretation of national law contra legem’ (para 47). Article 35(1) TEU clothes the ECJ with jurisdiction ‘to give preliminary rulings on the validity and interpretation of framework decisions . . . and on the validity and interpretation of the measures implementing them’. In terms of article 35(2) TEU, Member States which have made a declaration accepting such jurisdiction may refer matters to the ECJ. In Pupino the ECJ took the view that the existence of this jurisdiction means that individuals may invoke the Framework Decision in national courts to obtain ‘a conforming interpretation of national law’ (para 38). The principle of indirect effect, coupled with the right of individuals to invoke the Framework Decision in national courts, thus constitutes a mechanism for the enforcement of victims’ rights (Fletcher, 2005, p. 875). However, the UK has not made the requisite declaration (Lööf, 2006, p. 429), depriving victims of the opportunity to request a referral to the ECJ. The scope for victims’ reliance on the Framework Decision is thus dependent upon the extent to which domestic courts are willing to uphold their duty to give it indirect effect. European Court of Human Rights Although the ECHR does not explicitly enshrine victims’ rights, the ECtHR has integrated them into its jurisprudence in three primary respects. First, it has accorded victims an independent civil right to a fair trial in certain circumstances. Second, it has incorporated victims’ rights/interests into the proportionality requirement of the defendant’s right to a fair trial in article 6 ECHR. Third, it has imposed positive obligations on Member States to ensure that victims’ rights to life in article 2 ECHR, freedom from torture and inhuman or degrading treatment or punishment in article 3 ECHR, and respect for private and family life in article 8 ECHR are upheld. This section engages in an overview of the relevant case law in these respects. Independent civil right to a fair trial Article 6(1) ECHR provides (in relevant part) that:

1 [2005] 3 WLR 1102.

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In the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The ECtHR has recognised that victims have rights to a fair trial in civil proceedings in certain circumstances. In Osman v UK,2 for instance, it held that article 6(1) applies to a victim who wishes to institute an action in negligence against the police for failing to investigate effectively and to prevent the commission of the crime (paras 139–40). It held further that the domestic court’s refusal to entertain the victim’s claim constituted a blanket police immunity that unjustifiably restricted the victim’s right in terms of article 6(1) (para 151). In Perez v France 3 it confirmed that, as article 6(1) applies to ‘the determination of civil rights and obligations’, it applies to a partie civile, who is a party to the criminal proceedings for the purpose of pursuing his/her compensation claim (paras 71–2). Incorporation of victims’ rights/interests into defendant’s right to fair trial Although the victim’s right to a fair trial applies expressly to civil proceedings, article 6 makes reference only to the defendant’s right to a fair trial in criminal proceedings. However, the ECtHR has nonetheless incorporated victims’ rights/interests into the proportionality requirement of the defendant’s right to a fair trial. The instances in which it has done so have concerned the limitation of the defendant’s right in article 6(3)(d) ‘to examine or have examined witnesses against him’. The ECtHR has taken the view that, where witnesses are too afraid to testify, their rights/interests may legitimate the use of anonymous evidence, hearsay evidence, or special measures, such as the relaying of pre-recorded interviews. In appropriate circumstances, the limitation on the defendant’s right in article 6(3)(d) that such measures entail may be justified. Doak states that measures such as these do not dilute the protection given to defendants. Although the defendant’s rights are clearly not subject to those of the victim, it is erroneous to assume ‘that the victim is not worthy of basic minimum standards of protection within the criminal process’ (Doak, 2003, p. 26). The rest of this section is concerned with an analysis of the way in which the ECtHR has given victims such minimum standards of protection in the context of article 6 ECHR.

2 (2000) 29 EHRR 245. 3 (2005) 40 EHRR 39.

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(I) WITNESS ANONYMITY

The case of Doorson v The Netherlands 4 concerned witnesses who had been granted anonymity because of fear of reprisals from the defendant, a drug dealer. The ECtHR held that this did not violate article 6(3)(d). It justified this view by arguing that the interests of victims and witnesses, while not expressly protected by article 6, are protected by other Convention rights, such as the rights to life, liberty and security of the person, and respect for private and family life (para 70). The principles of a fair trial require that defence interests are balanced against victims’/witnesses’ interests in appropriate cases (ibid). Measures such as anonymous testimony may thus be used in order to protect witnesses, provided that they are strictly necessary and that the limitations on the defendant’s right are ‘sufficiently counterbalanced by the procedures followed by the judicial authorities’ (para 72). (II) WITNESS STATEMENTS (HEARSAY)

The ECtHR has adopted a similar approach to the use of witness statements in cases where the witness is too afraid to testify in court. In Lucà v Italy,5 albeit concerned with a co-accused who refused to testify (para 33) rather than a frightened witness, the ECtHR stated that it may be necessary in certain cases to refer to witness statements made during the investigation stage, particularly where the witness is too afraid to testify. Provided that the defendant has been afforded the opportunity to challenge the statements, either when they were made or at a later stage in the proceedings, their admission will not contravene article 6(3)(d). The court emphasised, however, that a conviction based ‘solely or to a decisive degree’ on a witness statement where the defendant has not been able to examine the witness at any stage of the proceedings violates article 6 (para 33). This situation occurred in PS v Germany,6 a decision concerning a child victim of sexual abuse who was too traumatised to testify in court (para 27). The ECtHR stated that the importance of arranging criminal proceedings in a way that protects the interests of young witnesses, particularly in sexual offence cases, must be considered in terms of article 6 (para 28). However, it held that, primarily because the victim’s statement was the only direct evidence, the conviction was based to a decisive extent on this statement and thus that article 6(3)(d) had been violated (paras 30–2).

4 (1996) 22 EHRR 330. 5 (2003) 36 EHRR 46. 6 (2003) 36 EHRR 61.

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(III) SPECIAL MEASURES: PRE-RECORDED TESTIMONY

The ECtHR has also recognised that victims’ interests must be taken into account in the proportionality element of the defendant’s right to a fair trial in instances where special measures such as pre-recorded testimony are used in order to free the witness from having to testify in court. This approach was adopted in SN v Sweden,7 a case concerning a victim of sexual abuse whose testimony was admitted via video and audio recordings (para 35). This testimony was ‘virtually the sole evidence’ on which the applicant’s conviction was based (para 46). The ECtHR held that, because sexual offence victims experience trials as an ordeal, their right to respect for private life must be considered in determining whether the defendant has received a fair trial. However, the special measures must not prevent the defendant from being able to exercise his/her rights adequately and effectively (para 47). The court took the view that they had not done so in casu as the applicant’s counsel had consented to the victim being interviewed by the police without the applicant (or his counsel) being present (paras 49–51) and thus that article 6(3)(d) had not been violated. Positive obligations The third way in which the ECtHR has incorporated victims’ rights into Convention jurisprudence is by imposing positive obligations on Member States to ensure that victims’ rights to life, freedom from torture and inhuman or degrading treatment or punishment, and respect for private and family life are upheld. It has emphasised that these obligations require the state not only to take positive measures to protect victims from state action in violation of their rights but also to protect them from the infringement of their rights by private individuals. These rights thus apply both vertically and horizontally (Klug, 2004, p. 113). (I) RIGHT TO LIFE

Article 2.1 provides that: Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. In Osman v UK 8 the second applicant argued that the state’s failure to protect him from being assaulted and his father from being killed by a person

7 (2004) 39 EHRR 13. 8 (2000) 29 EHRR 245.

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whom the police knew or ought to have known was a danger to them, amounted to a violation of his right to life in article 2 ECHR. The ECtHR held that, in principle, Member States have a positive obligation in terms of article 2 to take all reasonable steps ‘to avoid a real and immediate risk to life of which they have or ought to have knowledge’ (para 116). On the facts, however, it held that the applicants were unable to demonstrate that the police knew or ought to have known that there was such a risk to life and thus that article 2 had not been violated (paras 121–2). However, in Edwards v UK,9 the ECtHR found that both the substantive and procedural elements of article 2 had been violated. The applicants’ son had been killed by his prison cell-mate. In regard to the substantive element, the ECtHR held that, despite the fact that the prison authorities knew or ought to have known that the cell-mate was a ‘real and serious risk to others,’ they had failed to pass on known information about him and had screened him inadequately. The state had accordingly breached article 2 (paras 60, 64). In regard to the procedural element, the ECtHR affirmed that the state’s duty to protect life in article 2, read with its duty in terms of article 1 to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, requires that it undertake an effective investigation into the death (para 69). It emphasised the importance of the next-of-kin’s involvement in the procedure of the investigation ‘to the extent necessary to safeguard his or her legitimate interests’ (para 73). It found, on the facts, that the applicants were entitled to attend the inquiry held by the state only when they were testifying, and that they were not entitled to legal representation or to question witnesses. The state had accordingly breached the procedural obligation of article 2 (paras 84, 87). The ECtHR held further that the state had infringed the right to an effective remedy in article 13 by failing to provide the applicants with an effective domestic remedy. It stressed that article 13 requires that the victim or the victim’s family must have access to ‘a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention’, which had not occurred in casu (paras 97, 101). The ECtHR’s victim-centred interpretation of article 2, particularly as regards the procedural involvement of the victim’s family, has potentially far-reaching consequences concerning the increased significance of victims’ participation rights, at least in quasi-judicial proceedings such as inquiries. This approach has recently been adopted by the English courts in Van Colle v Chief Constable of Hertfordshire 10 (see below).

9 (2002) 35 EHRR 19. 10 [2006] HRLR 25.

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(II) FREEDOM FROM TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

Article 3 provides that: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. In several decisions, the ECtHR has emphasised the importance of imposing positive obligations on the state to protect people from harm that falls within the threshold level of severity of article 3. The majority of these decisions have concerned the state’s failure to protect children from physical and sexual abuse. In A v UK 11 the applicant, who had been seriously assaulted by his stepfather, argued that the state had breached article 3 by failing to ensure that the criminal law effectively protected him. The ECtHR held that the provisions of article 1 (see above), read with article 3, impose a duty on Member States to adopt measures to ensure that persons, particularly children and other vulnerable persons, ‘are not subjected to torture or inhuman or degrading treatment or punishment’ by the state or by private persons (para 22). The fact that English law recognised a defence of ‘reasonable chastisement’ to assault meant that the UK was in violation of this duty (paras 23–4). Section 58 of the Children Act 2004 has addressed this violation by criminalising the corporal punishment of children if it results in ‘actual bodily harm’ or constitutes ‘cruelty’ (Allen, 2005, p. 335). In Z and Others v UK,12 the applicants had been subject to severe abuse by their fathers and argued that the local authority had violated article 3 by failing to take steps to terminate the abuse. On the facts, the ECtHR found that the abuse had been brought to the attention of the local authority, which had failed to comply with its statutory duty to protect the applicants, and that there was accordingly a breach of article 3 (paras 74–5). It went further, however, and held that the fact that domestic law did not provide the applicants with the means to ensure a determination of their allegations or the possibility of receiving compensation constituted a breach of the duty in article 13 to provide an effective remedy (para 111). The ECtHR likewise found breaches of article 3 and article 13 in E v UK,13 a case concerning the failure of the local authority to take steps to protect the child applicants from sexual abuse (paras 101, 116). In DP and JC v UK,14 which involved a claim by the child applicants that the state, in the form of the local authority, had breached its duty to protect them from serious sexual abuse by

11 12 13 14

(1999) 27 EHRR 611. (2002) 34 EHRR 3. (2003) 36 EHRR 31. (2003) 36 EHRR 14.

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their stepfather, the ECtHR found no violation of article 3, but nonetheless found that article 13 had been infringed (paras 114, 138). (III) RESPECT FOR PRIVATE AND FAMILY LIFE

Article 8.1 provides that: Everyone has the right to respect for his private and family life, his home and his correspondence. Article 8.2 provides that: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. It has been settled law for many years that article 8 imports not only a negative state duty to avoid interfering with private and family life but also a positive state duty to take steps to ensure respect for private and family life, both by the state itself and by private individuals. In X and Y v The Netherlands,15 the ECtHR held that this positive duty includes the duty to protect the applicants from sexual abuse by ensuring the existence of an effective criminal law (para 23). It affirmed this approach in Stubbings v UK,16 stating that sexual abuse victims have a right to be protected by means of effective deterrent measures from such serious invasion of their private lives (para 62). It appears from the above discussion that the ECHR has been given a generous interpretation by the ECtHR to further the development of victims’ rights. In terms of s 2(1)(a) of the Human Rights Act 1998 (HRA), this jurisprudence of the ECtHR must be taken into account by the English courts insofar as it is deemed to be relevant. It is demonstrated below that the English courts are recently showing an increased willingness to follow this jurisprudence and, at times, even to adopt a broader approach than it requires.

English law and policy on victims’ rights This section comprises an analysis of the measures in English law and policy concerning victims of crime. It indicates that, with some exceptions, these

15 (1986) 8 EHRR 235. 16 (1997) 23 EHRR 213.

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measures are based on an understanding of victims’ interests as giving rise to expectations or entitlements rather than legally enforceable rights. The section provides a brief overview of the Victim’s Charters (Home Office,1990; Home Office, 1996b) and the government policy that preceded the introduction of the Code of Practice for Victims of Crime 2005 (the Victims’ Code). Thereafter it engages in an assessment of the legal nature of the Victims’ Code. Finally, it considers the manner in which the courts have used their powers of judicial review and scrutiny of state action in terms of the HRA to provide, to a limited extent, for the enforcement of certain rights for victims of crime. The position prior to the Victims’ Code The Victim’s Charters 1990 and 1996 (Home Office, 1990, Home Office, 1996b) represented the first comprehensive attempts on the part of the government to cater for the needs of victims in the criminal justice system. The Victim’s Charter 1990 was entitled ‘A Statement of Rights of Victims of Crime’. It did not contain rights but merely ‘guiding principles’ concerning the treatment of victims, and was not legally enforceable (Dignan, 2005, pp. 66–7). It was criticised for ‘falsely raising victims’ hopes by dressing service standards in the language of rights’ (Goodey, 2005, p. 127). The Victim’s Charter 1996 moved away from the language of rights, being entitled ‘A Statement of Service Standards for Victims of Crime’. It provided victims with expectations that they would receive certain services from the relevant criminal justice agencies (Rock, 2004, p. 160) and, like its predecessor, was not legally enforceable. In terms of the Charter, victims could expect:

• • • •

to be given information, inter alia, about the progress of the police investigation, the trial proceedings and the release of offenders; to have their views taken into consideration, inter alia, by the Crown Prosecution Service and the courts; to be treated with respect and sensitivity in court; and to be offered emotional and practical support, such as assistance in claiming compensation.

Although the Charter gave victims the expectation of such services, the fact that it lacked enforceability meant that it granted victims no rights as consumers of these services or substantive rights as citizens (Goodey, 2005, p. 131). However, it nonetheless provided ‘a formal authority to act’ (Rock, 2004, p. 162), thereby facilitating gains as regards the consideration of victims’ interests which may otherwise not have been achieved. The government response to the movement, in Europe and elsewhere, to recognise enforceable rights for victims has vacillated. On the one hand, the idea of such rights has been strongly opposed. The Lord Chancellor, for instance, firmly disapproved of the establishment of ‘a new comprehensive tier

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of legally enforceable rights for victims’ (Rock, 2004, p. 535). On the other hand, however, in the immediate aftermath of the Framework Decision, the government stated that it aimed to establish statutory rights for victims (Home Office, 2001b; Home Office, 2001c), including the rights:

• • • • • •

to be treated with dignity and respect; to support; to protection; to give and receive information; to compensation or reparation; and to a transparent criminal justice process (Home Office, 2001b, para 3.104).

In spite of these statements of intent, enforceable statutory rights for victims never materialised. Instead, state discourse reverted to the language of victims’ ‘needs’ and ‘services’ for victims. In Justice for All (Home Office, 2002b), the government stressed the importance of putting victims at the ‘heart’ of the criminal justice system and rebalancing the system in favour of victims (paras 0.22, 0.3). In the same breath, however, its erstwhile talk of statutory victims’ rights gave way to an intention to introduce a Victims’ Code of Practice imposing responsibilities on criminal justice agencies ‘to ensure that the needs of victims and witnesses are met’ (para 2.43). Similarly, in A New Deal for Victims and Witnesses (Home Office, 2003c) it stated that the ‘overarching aim’ of its victims’ strategy ‘is to improve services to victims and witnesses and to increase their satisfaction with those services’ (para 3.1). As the memory of the adoption of the Framework Decision faded, so too did the talk of victims’ rights. As Jackson has argued, instead of engaging in rhetorical statements of commitment to victims’ interests, the government should ensure the existence of specific remedies for victims whose rights have been infringed, resulting in ‘consequences for criminal justice agencies which failed to deliver these rights’ (Jackson, 2003, p. 326). The Victims’ Code In accordance with the above government policy, the Victims’ Code imposes service obligations on various criminal justice agencies. These obligations include the provision of information throughout the criminal justice process, appropriate protection, such as special measures, and sensitivity and respect (see Chapter 9). The Victims’ Code binds, inter alia, the following criminal justice agencies:

• • • • •

the police (para 5); the Joint Police/CPS Witness Care Units (para 6); the CPS (para 7); Her Majesty’s Court Service (para 8); and the Criminal Injuries Compensation Authority (para 13).

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The Victims’ Code does not enshrine any enforceable rights for victims but merely affords dissatisfied victims a mechanism for instituting complaints. As De Than has argued, it lacks ‘real status and courtroom enforceability’ (2003, p. 182). Paragraph 16.1 provides that, in the first instance, if victims are of the view that any of the agencies have not fulfilled their obligations in terms of the Victims’ Code, they should discuss the matter with the person with whom they have been dealing at the relevant agency. If they remain dissatisfied, they should ‘make a complaint through the internal complaints procedure of that service provider’. If their complaint is not satisfactorily addressed, they may complain to the Parliamentary Ombudsman, who is empowered in terms of s 47 and schedule 7 of the Domestic Violence, Crime and Victims Act 2004 (DVCVA) to investigate and report to Parliament on such complaints. Section 48 of the DVCVA provides for the appointment of a Commissioner for Victims and Witnesses. In terms of s 49(1), the Commissioner’s functions are to promote victims’ and witnesses’ interests, to take appropriate steps to encourage ‘good practice in the treatment of victims and witnesses’, and to keep the operation of the Victims’ Code under review. However, the Commissioner may not exercise these functions to take up particular victims’ causes or as regards ‘anything done or omitted to be done by a person acting in a judicial capacity or on the instructions of or on behalf of such a person’ (s 51). Section 34(1) of the DVCVA expressly provides that if an agency breaches a code duty, no criminal or civil liability may ensue. However, in terms of s 34(2), the Victims’ Code ‘is admissible in criminal or civil proceedings and a court may take into account a failure to comply with the code in determining a question in the proceedings’. It is as yet uncertain when a breach would be deemed relevant to such a question, but Ward and Bird suggest that it may be relevant to ‘questions about whether special measures directions should be made under the Youth Justice and Criminal Evidence Act 1999’ (2005, p. 92). It is thus clear that, in general, there are no statutorily enforceable rights for victims of crime. The role of the courts This section considers the extent to which victims may enforce certain rights by applying for judicial review and by claiming that their rights in terms of the HRA have been violated. It demonstrates that the English judiciary has become increasingly willing to exercise its powers to vindicate victims’ rights in recent years, particularly in light of the jurisprudence of the ECtHR discussed above. Judicial review Victims are given standing to apply for judicial review in limited circumstances. This section discusses three such circumstances. First, CPS decisions not to

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prosecute are subject to judicial review.17 However, the grounds on which the courts will exercise their power to review such decisions are restricted. In R v The Director of Public Prosecutions ex parte C,18 the court affirmed that it may intervene only if it is shown that the Director of Public Prosecutions decided not to prosecute due to an unlawful policy, or failed to act in terms of his/her own policy contained in the Code of Practice for Crown Prosecutors, or made a perverse decision which no reasonable prosecutor could have made (para 7). The court held that the failure by the CPS to consult a victim about a decision not to prosecute does not fall within any of these factors and thus does not constitute a procedural impropriety entitling the court to intervene (para 31). There are nonetheless recent signs that the judiciary is adopting a more flexible approach. In R v Director of Public Prosecutions, Ex parte Manning,19 the Court of Appeal quashed a prosecutorial decision not to prosecute in a case involving a death in custody. Although it took the view that the power to review must be ‘sparingly exercised’, it added that the threshold for review should not be too high, as judicial review constitutes the only method of obtaining ‘redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied’ (para 23). Burton takes the view that, although the courts purport to be unwilling to intervene in discretionary prosecutorial decisions, they are ‘increasingly recognising the need for some accountability to themselves’ (2001, pp. 376–7). Second, as was affirmed in R v Criminal Injuries Compensation Board, Ex parte A,20 it is settled law that a victim has standing to apply for judicial review of the decisions of the Criminal Injuries Compensation Authority. The applicant’s compensation claim had been refused due to insufficient evidence. She applied for judicial review on the basis that the attention of the Board had not been drawn to the existence of medical evidence in support of her claim (p. 343). The House of Lords held that there had been a violation of the rules of natural justice, quashed the Board’s decision and remitted the matter to it for reconsideration (pp. 345, 347). Third, s 35 of the DVCVA accords victims the right to receive relevant information from the Probation Board concerning the release of sexual and violent offenders who have been sentenced to at least 12 months’ imprisonment, and to make representations concerning conditions for their release (see Chapter 9).

17 See, inter alia, R v Director of Public Prosecutions, Ex parte C [1995] 1 CrAppR 136; R v Director of Public Prosecutions, Ex parte C [2000] WL 281275; R v Director of Public Prosecutions, Ex parte Manning [2001] QB 330; R (on the application of Patricia Armani da Silva) v Director of Public Prosecutions, Independent Police Complaints Commission [2006] EWHC 3204 (Admin). 18 [2000] WL 281275. 19 [2001] QB 330. 20 [1999] 2 AC 330 (HL).

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Ward and Bird take the view that victims have standing to challenge matters pertaining to these provisions in judicial review proceedings (2005, p. 95). Although the judiciary thus has some oversight of decisions affecting victims of crime, judicial review does not enable victims to claim damages for losses suffered in consequence of the violation of their rights and is thus, on its own, an insufficient means of protecting victims’ rights. Human rights jurisprudence concerning victims The HRA grants legal standing to individuals to institute actions against the state for violations of Convention rights. Section 6(1) provides that a public authority acts unlawfully if it acts incompatibly with a Convention right. A public authority includes a court or tribunal and any person some of whose functions are functions of a public nature (s 6(3)). Criminal justice agencies, such as the police and the CPS, fall within the terms of this definition. Section 7(1) provides that a person who is or would be a victim of an unlawful act in terms of s 6(1) may institute proceedings against the relevant public authority or may rely on the relevant Convention right(s) in legal proceedings. The term ‘victim’ refers to a victim for the purposes of article 34 ECHR (s 7(7)). Section 7(8) expressly precludes any conduct of such a public authority from amounting to a criminal offence. In terms of s 8(1), if the court finds that a public authority has acted or is proposing to act unlawfully, it may make any order or grant any relief or remedy that it is empowered to make or grant, which it deems ‘just and appropriate’. However, it may not award damages unless, having considered all the circumstances, such as ‘any other relief or remedy granted, or order made’ and ‘the consequences of any decision’ made by it or any other court, it ‘is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made’ (s 8(3)). In addition, s 8(4) requires that, in determining whether to grant damages and, if so, the amount of damages to be awarded, the court must take into account the ECtHR’s jurisprudence as regards the award of compensation in terms of article 41 ECHR. Despite the fact that it has been granted these powers, the judiciary initially displayed some reluctance to adopt a purposive approach to the HRA, opting instead for a literalist, ‘black-letter’ approach (Klug, 2004, p. 118). However, the courts have recently demonstrated an increasing willingness to develop certain rights for victims within the context of the jurisprudence of the ECtHR. This section assesses the recent case law. For ease of reference, it follows the structure of the discussion of the ECtHR jurisprudence on victims’ rights above. (I) INDEPENDENT CIVIL RIGHT TO A FAIR TRIAL

Like the ECtHR, the English courts have recognised that victims have a civil right in terms of article 6(1) ECHR in certain circumstances. For instance,

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although the UK does not recognise the partie civile procedure, it does afford victims a civil right for the purposes of claiming compensation from the Criminal Injuries Compensation Authority. In C v Secretary of State for the Home Office,21 the Court of Queen’s Bench affirmed that, as the Criminal Injuries Compensation Scheme is statutory, ‘a well-founded claim to compensation under the Scheme is a “civil right” ’ and the applicant is accordingly entitled to a fair hearing in terms of article 6(1) (para 43).22 However, the ECtHR has adopted a different view. In August v UK,23 it held that the Scheme is ex gratia and that it is accordingly not apparent that victims have a civil right to claim compensation. It held further that, even if article 6(1) was engaged, the substantive content of a civil right is a matter for the domestic authorities, not the ECtHR (para 2). It is submitted that the ECtHR erroneously regarded the English Scheme as ex gratia. The English judiciary,24 as well as the Criminal Injuries Compensation Authority itself (Rock, 2004, p. 284), distinguish between the common law scheme that preceded the Criminal Injuries Compensation Act 1995 and subsequent schemes. The former was clearly ex gratia and afforded victims only a legitimate expectation of compensation. The later schemes are statutory and therefore grant a civil right to applicants with well-founded compensation claims (see Chapter 11). (II) INCORPORATION OF VICTIMS’ INTERESTS/RIGHTS INTO DEFENDANT’S RIGHT TO FAIR TRIAL

The English courts have also recently been willing to give weight to victims’ interests/rights in the proportionality element of the defendant’s right to a fair trial in article 6 ECHR. As has been the case in the jurisprudence of the ECtHR, the English case law has concerned the extent to which witness anonymity, hearsay evidence by frightened witnesses, and special measures are compatible with the defendant’s right to examine witnesses in article 6(3)(d). (a) Witness anonymity In R v Davis; R v Ellis and Others,25 the appellants argued that their rights to examine witnesses in article 6(3)(d) had been violated by the use of anonymous witnesses. The Court of Appeal took the view that the issue of witness anonymity engages not only the defendant’s right to a fair trial but also the witness’s rights in terms of articles 2 and 8 ECHR. It emphasised that witness anonymity is not expressly prohibited by article 6, provided that it is possible for the witness to be examined by or on behalf of the defendant

21 22 23 24

[2003] EWIJC 1295 (QB). See also S v Criminal Injuries Compensation Board [2004] SLT 1173 at para 144. Application no. 36505/02, 21 January 2003. See R v Secretary of State for the Home Department, Ex parte Fire Brigades Union and Others [1995] 2 AC 513 (HL) at 553. 25 [2006] 2 Cr App R 32.

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(para 30). It held that the purport of the jurisprudence of the ECtHR is that witness anonymity is not inconsonant with the right to a fair trial, provided that the need for such anonymity is clearly established, that cross-examination of the anonymous witness is possible, and that, overall, the trial is fair (para 51). Very significantly, it took the view that this jurisprudence does not lead to the conclusion that, as regards an anonymous witness who is justifiably and genuinely afraid, ‘the trial will inevitably be considered unfair, and the conviction unsafe, simply because the evidence of the anonymous witness may be decisive to the outcome’ (ibid). However, the court stressed that, in order to prevent disadvantage to the defendant, a court must examine an application for witness anonymity ‘with scrupulous care’ and must ‘ensure that necessary and appropriate precautions are taken to ensure that the trial itself will be fair’ (para 59). On the facts, the court found that there was sufficient independent evidence in support of the anonymous testimony and that the trials were fair and the convictions were safe (paras 101, 140). It is arguable that, in its approach to the justifiability of the restriction on the defendant’s right to a fair trial in cases where the anonymous testimony is decisive, the Court of Appeal, despite its statements to the contrary, has gone further than the ECtHR. As is evident from the discussion of the ECtHR jurisprudence above, the latter has repeatedly taken the view that the use of evidence, whether anonymous or hearsay, will infringe the defendant’s right to a fair trial where it is the sole or decisive evidence against the defendant (Doak, 2003, p. 19). (b) Witness statements (hearsay) The English courts have also adopted an expansive approach to the admission of hearsay evidence in the case of frightened witnesses. In R v M (KJ),26 the essential or only witness would not testify because of fear (para 59). The trial judge admitted the witness’s statement in terms of the hearsay provisions of s 23 of the Criminal Justice Act 1988 (see Chapter 9). The Court of Appeal took the view that the rule that a ‘conviction based solely or mainly on the impugned statement of an absent witness . . . violates the right to a fair trial’ does not admit of no exceptions, because if it did, that would lead to unacceptable witness intimidation (paras 59–60). However, on the facts, it found that the witness was flawed and that the admission of his statement had breached the defendant’s right to a fair trial, particularly as the defendant, being unfit to stand trial, could not testify (paras 61–2). This approach was applied in R v Sellick and Sellick,27 which also concerned the hearsay provisions of s 23 of the Criminal Justice Act 1988 (CJA 1988). The Court of Appeal held that in cases where the witness was kept away by the

26 [2003] 2 Cr App R 21. 27 [2005] 2 Cr App R 15.

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defendant causing the witness to fear, article 6(3)(d) would not be infringed if the witness’s statement was read without the defendant having an opportunity to challenge the witness, even where the evidence was the ‘sole or decisive evidence’ against the defendant (paras 51–2). The court added, however, that courts must take care to ensure that the hearsay provisions in the CJA 1988, as well as the new provisions in the Criminal Justice Act 2003 (CJA 2003; see Chapter 9), are not abused. They must scrutinise all the circumstances carefully prior to exercising their discretion to admit the evidence, particularly where it is decisive evidence. They must warn juries to take account of the defendant’s difficulty in not being able to cross-examine the witness (para 57). The Court of Appeal in R v Xhabri,28 albeit concerned not with the hearsay evidence of frightened witnesses but with other hearsay provisions of the CJA 2003, held that article 6(3)(d) does not encompass an absolute right for defendants to cross-examine every witness against him/her and that it was not infringed by these hearsay provisions (paras 42–4). O’Brian has argued that the courts’ approach to the right in article 6(3) is not consistent with its plain language, as it is a ‘minimum’ right that must be upheld in order to ensure that the trial is fair (O’Brian, 2005, p. 494). The courts have thus been willing to adopt a purposive approach to article 6, which goes further than the approach of the ECtHR, in order to protect the interests of frightened witnesses. (c) Special measures In view of the fact that, in terms of the Youth Justice and Criminal Evidence Act 1999 (YJCEA; see Chapter 9), witnesses cannot testify only by means of pre-recorded video evidence but must also employ other special measures such as live television links, the English courts have not been called upon to assess the compatibility of pre-recorded evidence on its own with article 6 ECHR. However, in R (D) v Camberwell Green Youth Court; R (Director of Public Prosecutions) v Camberwell Green Youth Court,29 the House of Lords held that the provisions of s 21 YJCEA were compatible with article 6(3)(d) ECHR. Section 21 pertains to child witnesses in need of special protection, viz child witnesses in certain listed offences, particularly sexual offences, whose evidence must be given by live television link as well as video recording, if the latter is available. Baroness Hale of Richmond held that, as these measures afford the defendant an opportunity to challenge the witness directly during the trial, they do not infringe article 6 (para 51). Relying on SN v Sweden,30 Lord Rodger of Earlsferry stated that the ECtHR has not interpreted article 6(3)(d) as requiring the defendant to be given a right to be present in the room where the witness is testifying and that the defence

28 [2006] 1 Cr App R 26. 29 [2005] 2 Cr App R 1. 30 (2004) 39 EHRR 13.

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may nonetheless be given a proper opportunity to question and challenge prosecution witnesses even in cases where, on good grounds, the defendant is not present during the questioning. Good grounds exist in the case of s 21, as its provisions aim ‘to further the interests of justice by adopting a system that will assist truthful child witnesses to give their evidence to the best of their ability’ (para 15). (III) POSITIVE OBLIGATIONS

Until comparatively recently, the English courts have been hesitant to find the state liable for breaching the positive obligations in terms of articles 2, 3 and 8 that the ECtHR has recognised. However, in a spate of recent cases, they have delivered some far-reaching judgments in this regard. (a) Right to life In Van Colle v Chief Constable of Hertfordshire,31 the claimant’s son, a prospective prosecution witness, had been killed by the defendant, and the claimant instituted action against the police in terms of s 7 HRA for unlawfully breaching article 2 ECHR. The court held that prosecution witnesses constitute a special category entitled to more protection than private citizens in general (para 49). It stated that, in the case of such witnesses, ‘the Osman threshold of a real and immediate risk . . . is too high. If there is a risk on the facts, then it is a real risk, and “immediate” can mean just that the risk is present and continuing at the material time, depending on the circumstances’ (para 56). Although the case fell to be decided in terms of the HRA and the jurisprudence of the ECtHR was accordingly applicable (para 77), the court also considered the position at common law. It referred to the decision in Hill v The Chief Constable of West Yorkshire.32 where the House of Lords held that the police were not under a general duty of care to ‘identify or apprehend an unknown criminal’ or to protect private persons who may suffer harm from such a criminal, unless ‘their failure to apprehend him had created an exceptional added risk, different in incidence from the general public at large from criminal activities, so as to establish sufficient proximity of relationship between the police officers and the victims of the crime’. According to the House of Lords, public policy requires police immunity from liability for negligence in investigating and suppressing crime (para 68). The court also referred to the House of Lords’ decision in Brooks v Metropolitan Police Commissioner,33 where Lord Steyn stated that, in light of the jurisprudence of the ECtHR, the rule in Hill concerning police immunity requires reformulation ‘in terms of the absence of a duty of care’ (para 70).

31 [2006] HRLR 25. 32 [1989] AC 53. 33 [2005] UKHL 24.

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The court took the view that the House of Lords in both Hill and Brooks had recognised the possibility of exceptional circumstances where a duty of care would be established (para 72). It held that circumstances justifying a successful claim against the state for breach of its positive obligation to protect life in terms of article 2 ECHR would also justify the finding of a duty of care in terms of the common law and the concomitant recognition of a remedy in negligence (para 76). On the facts, the court found that the state had breached a positive duty under article 2 ECHR to protect the life of the claimant’s son, as the fact that he had been threatened was known to the police and generated an immediate risk to life, which the police knew or ought to have known. In addition, the police failed to take appropriate measures which were reasonably available to alleviate the risk (paras 87–8). The court also found a violation of article 8 ECHR as the failure of the police to protect the son’s life and, consequently, his loss of life destroyed his family life entirely (para 94). It accordingly awarded the claimants damages because, in its view, such damages were necessary to afford them just satisfaction (para 108). (b) Freedom from torture and inhuman or degrading treatment or punishment As was indicated in the discussion of the jurisprudence of the ECtHR above, the applicants in Z and Others v UK 34 and E v UK 35 had unsuccessfully tried to bring a claim against local authorities in the domestic courts on the grounds that they had failed to protect the applicants against abuse from their father/ stepfather by removing them into care. The claims had been unsuccessful because the House of Lords in X v Bedfordshire County Council 36 had held that, for policy reasons, the local authorities did not owe the applicants a duty of care in such circumstances. In the subsequent decision in S v Gloucestershire County Council; L v Tower Hamlets London Borough Council and Another,37 the claimants brought actions against the local authorities in negligence, alleging that they had breached their duty of care by failing to protect the claimants against sexual abuse by their foster fathers. Unlike the applicants in Z and E, the claimants had thus already been removed from their parents and placed in the care of foster parents by the local authorities. The Court of Appeal held that it is unlikely that a local authority would be able to raise a defence involving a blanket immunity and the House of Lords in X v Bedfordshire County Council did not purport to hold that ‘child abuse cases are bound to fail as a class’ (p. 338). However, the decision in Gloucester dealt not with a violation of article 3

34 35 36 37

(2002) 34 EHRR 3. (2003) 36 EHRR 31. [1995] 2 AC 633. [2001] Fam 313.

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ECHR but with the preliminary question of whether the local authorities could successfully apply for the claims to be struck out. On the facts, the court found that it could not be said that the first claimant’s claim had no real prospect of success and could thus not be struck out, but that the second claim had no such prospect and must be struck out (paras 344, 347). In light of the ECtHR’s approach in Z and Others v UK, as well as recent decisions such as Van Colle,38 the court’s willingness to refuse to strike out a claim in negligence against a local authority for failing to protect children from abuse may pave the way for future courts to hold local authorities liable for unlawfully violating article 3 ECHR in such cases. (c) Respect for private and family life The positive duty on the state to respect private and family life that is implicit in article 8 ECHR has both substantive and procedural elements. In other words, it extends not only to the substantive protection of respect for private and family life but also to procedural propriety in instances involving potential impairment of the right. In R (TB) v Stafford Crown Court,39 the judge in a sexual offence trial ordered the disclosure of the complainant’s medical records. She instituted proceedings claiming that such disclosure violated article 8 ECHR. The Administrative Court took the view that the procedural requirement implicit in article 8 required that the complainant must have been involved in the decisionmaking process to a sufficient extent to ensure that her interests were protected. If this did not occur, her right to respect for private and family life has been violated and ‘the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Art. 8’ (para 23). The court held that the fact that the complainant had not been given notice of the defendant’s application for disclosure of her medical records, or the opportunity to make representations before the court ordered such disclosure, constituted an unjustifiable violation of article 8, and that the trial court had thus acted unlawfully (para 25).

Towards enforceable rights The above analysis of English law and policy has shown that the government is unwilling to enshrine enforceable statutory rights for victims, and has chosen instead to impose service obligations on criminal justice agencies, which, if breached, entitle victims only to complain. By contrast, the courts have begun to employ their powers of judicial review and scrutiny of state action in terms of the HRA to grant rights to victims in certain respects. However, in view of the nature of legal development by casuistic means, the gains that have been

38 [2006] HRLR 25. 39 [2006] EWHC 1645 (Admin).

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made are unfortunately ad hoc and fragmented, being limited to the contours of the claims brought to court. Victims are accordingly without legal remedies in all the areas that fall outside these contours. In order to bring English law into line with international trends, the unenviable position of such victims ought to be rectified. The UK ought to follow the example of other European jurisdictions, such as Germany and Belgium (Feilcke, 2005, p. 7), and make a declaration in terms of article 35(1) TEU recognising the jurisdiction of the ECJ to make preliminary rulings concerning its compliance with the Framework Decision. This would enable aggrieved victims to rely on the Framework Decision in a domestic court in order to ensure that the rights enshrined therein are upheld. In addition, the government could revisit its statements of intent (see above) to introduce statutory rights for victims, as has recently occurred in the US. The American CVRA was adopted after a protracted but unsuccessful attempt on the part of victims’ rights advocates to obtain a constitutional victim’s rights amendment to the American Constitution (Kyl et al., 2005, p. 591). It enshrines broad rights such as ‘ “the right to be treated with fairness and with respect for the victims’ dignity and privacy” and the right to “reasonable protection” ’. In addition, it provides for specific rights, including the right to notice, the right ‘not to be excluded from public proceedings’ and the right ‘to be reasonably heard at public proceedings involving release, plea, or sentencing’ (Beloof, 2005, p. 342). The CVRA expressly grants victims the right to approach the courts in respect of a breach of its provisions. It provides for a non-discretionary writ of mandamus, which requires the court to determine the victim’s application forthwith and to ‘order such relief as may be necessary to protect [his or her] ability to exercise the rights’ (Beloof, 2005, p. 343). The CVRA accordingly enshrines enforceable rights, in respect of which victims are given legal standing. Whether or not similar legislation is enacted in the UK depends on the existence of the political will to do so, which unfortunately presently appears to be lacking. However, even if the UK were to recognise the jurisdiction of the ECJ, or to enact legislation enshrining enforceable victims’ rights, such rights may be inaccessible to certain groups of victims. It was indicated in Chapter 3, for instance, that corporate crime is extensively under-reported and that those crimes that do give rise to proceedings are prosecuted by regulatory agencies rather than the police and the CPS. In consequence, very few corporate crimes come to the attention of criminal justice agencies. The Victims’ Code applies only to victims who have ‘made an allegation to the police, or had an allegation made on [their] behalf, that they have been directly subjected to criminal conduct’ (s 3.1). As most victims of corporate crime do not report their experiences of victimisation to the police, they do not fall within the parameters of the Victims’ Code. Furthermore, the regulatory agencies that prosecute most cases of corporate crime are not bound by the Victims’ Code. Unless victims’ rights legislation expressly imposed duties on regulatory agencies, a similar position

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would obtain. Even if this were to occur, however, the enactment of victims’ rights legislation would be unlikely, in and of itself, to encourage more victims to report, and they would consequently remain unable to access such rights. In addition to imposing duties on regulatory agencies under victims’ rights legislation, the government ought thus to ensure that ordinary criminal justice agencies develop specific policies to encourage reporting and to respond effectively to the experiences of victims of corporate crime. Victims’ rights legislation may also be inaccessible to victims from socially unequal groups. Chapter 4 has shown that rape and domestic violence are significantly under-reported, that there is a high rate of attrition and that victims experience secondary victimisation at the hands of criminal justice agencies that discourages them from reporting. Likewise, Chapter 5 has demonstrated that racially and religiously motivated crime is also extensively under-reported and that racially discriminatory attitudes and practices on the part of the police (or perceptions of such attitudes and practices) reinforce victims’ unwillingness to report. Chapter 6 has indicated similar levels of under-reporting of homophobic and transphobic victimisation, which are also linked, amongst other things, to fear of police discrimination. Moreover, elder abuse is a ‘hidden’ crime that is rarely reported. Within this context of under-reporting, high attrition levels and fear of secondary victimisation due to discriminatory attitudes and practices, victims may be unable to access any rights enshrined in victims’ rights legislation. Spalek has argued that, in order to respond more effectively to victims’ lived experiences, victims’ rights must be ‘conceptualised in a wider framework’ that recognises that ‘racial, sexual and economic (alongside other forms) of equality are dependent upon wider cultural, social, political and economic processes’ (2006, pp. 115, 126). Victims’ rights legislation must thus be correlated more directly with human rights and anti-discrimination law, as Rec (2006) 8 suggests (see above). In addition, it must be supplemented with multi-agency strategies on the part of criminal justice and community agencies designed to generate effective responses to the victimisation experienced by victims from socially unequal groups (see Chapter 13 for a detailed discussion of these concerns).

Conclusion This chapter has shown that, while enforceable rights for victims are being recognised in both community law and the jurisprudence of the ECtHR, they have found little favour with the government in the UK. Although current criminal justice policy has purported to put victims at the ‘heart’ of the criminal justice process, in reality victims are mere consumers of services, rather than holders of rights. However, the English judiciary has recently shown increasing willingness to uphold victims’ rights, albeit in narrowly delineated circumstances. This chapter has contended that the UK ought to follow its European counterparts by recognising the jurisdiction of the ECJ to make preliminary rulings

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on its compliance with the Framework Decision and, in addition, to introduce statutory rights for victims along the lines of the American CVRA. It has nonetheless emphasised that victims’ rights legislation must be supplemented by specific policies to ensure that victims of corporate crime are able to access its provisions. It has also introduced the argument, which is taken up in Chapter 13, that such legislation must be linked to human rights and anti-discrimination law and underpinned by specific criminal justice policies to facilitate access by victims from unequal social groups.

Questions for further discussion

• • • • •

What effect would a declaration by the UK in terms of article 35(2) TEU have on the application of the Framework Decision in English law? What measures would strengthen the legal position of the Victims’ Code? What role has the judiciary played in recognising victims’ rights? Should the UK introduce statutory rights for victims of crime? Are statutory victims’ rights accessible to all victims?

Chapter 8

Support and assistance

Introduction This chapter documents the duties imposed on the UK in terms of Council of Europe instruments to encourage support and assistance to victims of crime. It evaluates the activities of ‘official’ agencies, such as Victim Support and the recently established Witness Care Units, and contends that, by supporting and promoting the activities of these agencies, the government has complied with its duties. However, as some victims from unequal social groups do not report their victimisation to the police and do not approach Victim Support for assistance, this chapter also considers the work of various ‘unofficial’ victims’ organisations whose activities are geared to meeting the needs of such victims.

Council of Europe instruments The Framework Decision on the Standing of Victims in Criminal Proceedings (2001/220/JHA), which binds the UK (see Chapter 7), contains provisions governing the duties of Member States concerning the provision of support and assistance to victims. In terms of article 13.1, Member States are required to promote such support and assistance, either by providing trained criminal justice personnel or by recognising and funding victim support organisations. Article 13.2 provides that Member States must encourage criminal justice personnel or victim support organisations to provide victims with information and assistance and to accompany them during criminal proceedings, to the extent to which this is ‘necessary and possible’. The provisions of article 13 are supplemented by the Council of Europe Recommendation Rec (2006) 8 on Assistance to Crime Victims, which, albeit not binding, is nonetheless of persuasive value (see Chapter 7). Article 5 reiterates the injunction to Member States to ‘provide or promote’ victim support services and states that such services should, amongst other things, afford victims ‘emotional, social and material support’ free of charge, deal competently with victims’ problems, give victims the requisite information about their rights and available services, and ensure that their services are confidential.

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The above provisions apply to victims of crime generally. No specific provision is made for victims from unequal social groups, particularly minority ethnic, LGBT and elderly victims (see Chapters 5 and 6), who may face structural, societal and/or cultural barriers to accessing official support services. Despite the absence of such provisions, the UK has a good track record of providing support to such victims through its ‘unofficial’ agencies, and Victim Support is also making a concerted effort to provide appropriate services to such victims (see below).

‘Official’ agencies The provision of support and assistance to victims, whether or not they are witnesses in criminal proceedings, constitutes the focus of this section. However, the support and assistance provided to witnesses for the duration of their involvement in the criminal trial are also considered briefly. Victim Support Victim Support, a national charity providing assistance and support to victims of crime, has its origins in a small local group established in Bristol in 1974 (Victim Support, 2004b, p. 2). It comprises a network of about 90 Victim Support schemes throughout the UK, employing approximately 1,500 staff and using about 10,000 volunteers (Victim Support, 2005). It provides services to approximately 1.7 million victims and witnesses every year. About 1.4 million of these victims are contacted through police referrals (Victim Support, 2004b, p. 8). Victim Support is primarily funded by central government, in the sum of approximately £30 million per year at the time of writing, but supplements its funds in the sum of a further £9 million through fundraising (Victim Support, 2004b, p. 2). In its developmental stage, Victim Support focused on catering for the needs of stereotypical victims, such as domestic burglary victims. However, since the mid-1990s, it has expanded its agenda to include support and assistance to all crime victims (Dignan, 2005, p. 50). In addition, it has changed from an apolitical organisation perceived as closely linked to the state to a more overtly political one, focusing on advocacy to attempt to influence government policy concerning victims. In recent times, it has also become more engaged in interagency activities with other community agencies, and has committed itself to the extension of its presence in the local community. Most recently, it has taken charge of the Victim Care Units (VCUs) that are being established in pursuance of the government’s recommendations (Criminal Justice System, 2005b). Victim Support’s work accordingly has several dimensions, comprising the provision of services, advocacy and inter-agency work. It has also been responsible for the introduction of the Witness Service, and retains oversight of its activities.

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Services The services provided by Victim Support, as well as the way in which they are provided, are currently in transition in light of the introduction of VCUs. This section accordingly commences by explaining the nature and method of provision of these services in the absence of VCUs and thereafter considers the changes being brought about. In areas where VCUs have not yet been established, Victim Support offers a range of services provided by trained volunteers in the various local schemes to victims of crime and their families and friends. These services include the provision of information, practical help and emotional support (Victim Support, 2006c, p. 25). The information it provides concerns, amongst other things, the operation of the criminal justice system, compensation claims and the housing and medical needs of victims. Practical help may take the form of assistance with compensation claims, insurance claims, housing applications or medical services. Emotional support comprises listening and the provision of comfort and reassurance to victims but does not usually include counselling, as volunteers are not trained counsellors (Williams, 1999, p. 90). In the majority of cases, victims’ details are received by Victim Support from the local police. However, the schemes also deal with self-referrals. Contact is usually initiated by telephone or letter, although there is also a practice of ‘cold-calling’ in limited cases. If the victim wishes to accept Victim Support’s services, a volunteer will visit the victim at his/her home. In non-serious cases, there is usually only one visit. In more serious cases, such as sexual assault or rape, however, there may be several visits, depending on the victim’s wishes. Although Victim Support uses a limited number of specially trained volunteers in the case of serious offences, who work with victims over a longer period, the usual practice is to refer such victims to specialist counselling services (Williams, 1999, pp. 90–1). A national telephone service, the Victim Supportline, was established in 1998 (Victim Support, 2004b, p. 5) with the aim of increasing self-referrals and enabling victims who did not report the crime to contact Victim Support (Dignan, 2005, p. 52). The line, which is located in the National Office in London, is staffed by approximately seven members of staff and 42 volunteers (Spalek, 2006, p. 96). There is evidence that the take-up of the Supportline has been slow, particularly by victims from minority ethnic communities (ibid). However, it is possible that more victims will use this service as it becomes more widely known. Although Victim Support has succeeded in extending its services to a wide range of victims, it has prioritised the improvement of services to certain groups of victims, including children and victims of gender-based violence. It has argued that more services are needed to support child victims of ‘ordinary’ offences, such as theft, burglary or violence, as the majority of children’s charities focus on supporting victims of child abuse (Victim Support, 2004b, p. 12).

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It has also expressed the need for expanded and more widely accessible services for victims of rape and domestic violence (Victim Support, 2004b, pp. 12–13). In addition, it has acknowledged the dearth of support for victims of homophobic crime, and has stressed the importance of having trained specialist volunteers to provide services to such victims (Victim Support, 2004b, p. 13). The introduction of VCUs, which was proposed by the government in 2005 (Criminal Justice System, 2005b), has led to changes in the nature of the services offered by Victim Support, as well as in the method of providing such services. VCUs were successfully piloted by Victim Support from October 2006 to March 2007 in Salford, Nottingham and York, and began to be established throughout England and Wales in September 2007 (Government News Network, 2007). Albeit headed by Victim Support, VCUs are a multi-agency initiative involving the Office for Criminal Justice Reform as well as local and national agencies that provide services to victims (Victim Support Nottinghamshire, undated). The procedure adopted by the pilot VCUs to contact victims differs from the previous procedure used by Victim Support (see above). Victims were contacted by telephone between 24 and 48 hours after their details were received (Government News Network, 2007). An initial needs assessment was then made, in order to determine whether immediate practical help was required, such as the emergency fitting of locks or assistance with transport or childcare. All victims were contacted again within a few weeks and a second assessment was made (Victim Support Nottinghamshire, undated). The purpose of this double assessment was to ensure that victims’ immediate as well as longer-term needs were effectively met. In addition to the above services, the enhanced services offered include counselling and the provision of loans, vouchers, burglar alarms, glazing and emergency boarding (Victim Support Nottinghamshire, undated). This procedure, as well as the enhanced services, forms the basis of the VCUs being introduced nationally. Advocacy As mentioned above, Victim Support has moved from an apolitical stance focused on the needs of stereotypical crime victims to a more politicised approach. However, rather than adopting an oppositional stance to government, as is the case with some of the ‘unofficial’ agencies considered below, it has forged collaborative links with government and is largely government-funded. As a member of the government’s interdepartmental Victims Steering Group, it is able to exercise an influence on the development of government policy regarding victims (Dignan, 2005, p. 53). Although it is an independent charity, it is thus, in a manner of speaking, engaged in advocacy from within. Its primary areas of concern involve the recognition of rights for victims of crime, proposals for the extension of victim services into the social welfare arena, and recommendations for the reform of the law regarding victim compensation and the enhancement of services to specific groups of victims.

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The movement of Victim Support to more proactive advocacy, which took shape in 1995, comprised arguing in favour of the recognition of victims’ rights (Dignan, 2005, p. 53). It advocated the recognition of the core rights to information and explanation, protection, compensation, and respect and assistance (Victim Support, 1995, pp. 9–10). However, it did not initially advocate legally enforceable rights, taking the view that victims should not be burdened by having decision-making responsibilities in the criminal justice system (1995, p. 8). By 2001, however, it had adopted the view that enforceable victims’ rights legislation should be enacted, providing ‘clear remedies if the rights are breached’ (Victim Support, 2001). It noted that most of the rights in the Framework Decision were available to victims in the UK, but that there were some gaps, such as the limited availability of legal aid for victims (Victim Support, 2002b, pp. 9, 12). It also advocated the appointment of a Commissioner for Victims of Crime (Victim Support, 2001) and played an important role in influencing the content of the Domestic Violence, Crime and Victims’ Act 2004 (Victim Support, 2004b, p. 9). These advocacy strategies have been fairly successful, with the government enacting the Code of Practice for Victims of Crime 2005 and creating the office of Commissioner for Victims and Witnesses. However, in view of the government’s refusal to introduce enforceable rights for victims, Victim Support has not won its battle entirely (see Chapter 7). In addition to arguing for the recognition of victims’ rights, Victim Support has contended that the imposition of duties on criminal justice agencies to cater for the interests of victims is insufficient, on its own, to respond effectively to all their needs. Responsibilities must also be placed on social welfare agencies outside the criminal justice system, such as health, housing and education (Victim Support, 2002a, p. 5). For instance, victims must be ensured access to free healthcare services (including counselling and psychiatric treatment) that are geared to meeting their needs. In addition, victims’ housing needs (such as the need to move to safe accommodation) must be prioritised (Victim Support 2002a, pp. 6, 10; Dignan, 2005, p. 55). Shortly after these proposals, the government responded by requiring government departments outside the criminal justice system ‘to recognise and support victims and witnesses’ (Victim Support, 2004b, p. 9). In several publications, Victim Support has adopted a critical stance to the limitations of the rules concerning victim compensation. It has argued, for instance, that the ‘same roof’ principle, in terms of which no compensation is payable for injuries sustained prior to 1 October 1979 where the victim and offender were living together, causes ‘extreme distress’ and self-blame to victims and ought to be abolished (Victim Support, 2003, p. 6). In addition, it has criticised the introduction of fixed surcharges for convictions, as they reduce the amount available for compensation orders against defendants of limited financial means (Victim Support, 2004a; see Chapter 11). Victim Support’s move to a more politicised approach to victims is demonstrated not only by its support for victims’ rights but also, since the 1990s and

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particularly the first part of the twenty-first century, by its recommendations for the development of specific measures to address the needs of victims from unequal social groups. In 1996, it published research into the experiences of rape and sexual assault victims and recommended, inter alia, that victims be provided with information, support, protection and assistance to reduce their experiences of secondary victimisation by police and medical examiners. In addition, it suggested that the procedures for evidence-in-chief and crossexamination be reformed to reduce the trauma of testifying (Victim Support, 1996, p. 59). Most of these recommendations have since been implemented (see Chapters 9 and 13). More recently, it has commissioned research into the experiences of victims of racially and religiously motivated crime, as well as victims of homophobic crime (Victim Support, 2006a). The research report recommends, inter alia, that Victim Support should develop a coherent service delivery framework for such victims that forms part of its national strategy (2006a, p. 70) and that the police should encourage reporting by victims ‘whose immigration status or other activities may make them reluctant to report such crimes’ (2006a, p. 73). It also recommends that Victim Support and other community agencies should ‘seek to engage the CPS in hate crime work’ (2006a, p. 74). However, despite its concern to engage in advocacy on behalf of victims who suffer victimisation on account of race, religion or sexual orientation, the evidence suggests that it receives few referrals from the police concerning such victims. Dignan states that the 2002/3 statistics for Victim Support referrals indicate that the overwhelming majority of referrals related to violent and sexual offences, burglary, theft and criminal damage, whereas domestic violence referrals and referrals for racially motivated crimes (approximately 5 per cent and 2 per cent respectively) accounted for a very small percentage of the total number of referrals (Dignan, 2005, p. 51). Victim Support has also recently conducted research into the experiences of families of homicide victims (Victim Support, 2006b). It took the view, amongst other things, that it should ensure that its services for victims bereaved by homicide be managed more effectively, and develop partnerships with police Family Liaison Officers and other community agencies (2006b, pp. 91–2). It also emphasised the need to engage in campaigning to highlight the needs of such victims, particularly as regards legal advice and representation (2006b, p. 93). The latter campaign has moved the government to permit legal representation for families of homicide victims at the sentencing stage in criminal proceedings (see Chapter 10). Community and inter-agency work Victim Support has recently become engaged in working partnerships and inter-agency work with criminal justice agencies as well as with other community organisations. Victim Support’s National Standards require that local

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schemes must show, inter alia, that ‘they are represented on local racial harassment, hate crime forums, sexual assault referral centres and domestic violence forums’ (Victim Support, 2006c, p. 32). This requirement has arisen as a consequence of the Crime and Disorder Reduction Partnerships (CDRPs) that have been established in terms of the Crime and Disorder Act 1998 (see Chapter 13). Victim Support is involved with many of the initiatives of such partnerships (Spalek, 2006, p. 97). Furthermore, the advent of VCUs, which are a multiagency initiative (see above), has enhanced Victim Support’s inter-agency and community work. Apart from its work with CDRPs, Victim Support has established working partnerships with community agencies such as Women’s Aid and Kidscape, in order to share knowledge and resources (2006, p. 94). It also works in partnership with and supports SAMM (Support After Murder and Manslaughter), a small charity that provides services to those bereaved by homicide (Dignan, 2005, p. 52). It thus appears from the above analysis that Victim Support, with its origins in a small local group in Bristol, has played a pivotal role in the development of support and assistance to victims in the UK, being regarded as ‘an unparalleled success story’ compared with victim support organisations in other European states, such as France and Germany (Goodey, 2005, p. 105). Witness Support This section evaluates the measures for the support and assistance of witnesses during the court proceedings. Witnesses’ needs are predominantly met by the Witness Service, one of the most significant initiatives undertaken by Victim Support, but services are also provided by the recently established Witness Care Units (WCUs). Witness Service As a consequence of concerns expressed by victims that they did not receive sufficient information, support or protection during court proceedings, Victim Support advocated the introduction of a Witness Service. Having succeeded in obtaining government funding, it commenced by running pilot Witness Services in seven Crown Courts in 1989 (Spalek, 2006, p. 95). By 1996, a Witness Service had been set up in every Crown Court in England and Wales (Dignan, 2005, p. 53). However, Victim Support believed that because more than 90 per cent of criminal cases are tried in magistrates’ courts, it was necessary to extend the Witness Service to these courts as well. In 1999 it obtained government funding to do so, and by 2002 a Witness Service had been established in all magistrates’ courts (Victim Support, 2002a, p. 18). The Witness Service provides support for prosecution and defence witnesses, as well as their family and friends (Victim Support, 2006c, p. 27). It attempts to

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ensure that all witnesses are given an opportunity to visit the court prior to the date of the hearing, in order that they may familiarise themselves with the court layout. It also sends information to witnesses about court procedure and the process of giving evidence (Williams, 2005, p. 122). In the case of vulnerable and intimidated witnesses, the Witness Service will, if the witness consents, inform the court of the witness’s need for special measures to assist him/her in giving evidence (Spalek, 2006, p. 95; see Chapter 9 for a discussion of special measures). On the day of the hearing, Witness Service volunteers who are trained in court procedure will accompany the witness to court, if they so wish, in order to provide moral and emotional support. However, volunteers are not permitted to discuss the evidence or give legal advice (2005, pp. 122–3). Volunteers are also available to support and listen to witnesses who are distraught after having testified, and will refer them to Victim Support if they wish to receive further support (Victim Support, 2006c, p. 27). Witness uptake of the Witness Service has been good. The Witness Satisfaction Survey (2002) indicates that eight out of ten witnesses are offered assistance from the Witness Service, and Victim Support has stated that 95 per cent of witnesses using the Service have been satisfied or very satisfied (Spalek, 2006, p. 96). Witness Care Units Joint police/Crown Prosecution Service WCUs were established in pursuance of the government’s No Witness, No Justice programme, which was successfully piloted in Essex, Gwent, North Wales, South Yorkshire and the West Midlands in 2003 and 2004 (Criminal Justice System, 2004). There are currently 165 WCUs in England and Wales, which oversee the care of witnesses from the time of charge until the case has concluded (Criminal Justice System online). They are staffed, inter alia, by Witness Care Officers, who keep witnesses informed of the progress of the case and the time at which they are required to give evidence. In addition, they provide practical help, such as assistance with childcare or transport (Criminal Justice System online). They also provide assistance with obtaining special measures for vulnerable witnesses (Criminal Justice System, 2004; see Chapter 9). Although WCUs refer witnesses to the Witness Service for practical and emotional support and assistance (Criminal Justice System online), their relationship to the Witness Service is somewhat unclear. In view of the fact that many of their functions are also performed by the Witness Service (see above), there is a danger of unnecessary duplication of services (see Chapter 9 for a discussion of the duties of WCUs in terms of the Victims’ Code).

‘Unofficial’ agencies As many victims from unequal social groups do not report their victimisation or approach Victim Support for assistance, preferring to enlist the aid of relevant

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non-governmental organisations, an analysis of the provisions for victim support in the UK would be incomplete without an assessment of the activities of these organisations. Although it is impossible to refer to all of them, some of the more prominent ones will be considered briefly. Organisations responding to gender-based violence The issue of violence against women (see Chapter 4) has been at the forefront of the agenda of the feminist movement since the 1960s. Organisations such as Rape Crisis have located their work within a specifically feminist political consciousness, in terms of which violence against women is viewed as flowing from the exercise of male power within a patriarchal society. Rape Crisis originated in London in the 1970s. There are approximately 43 Rape Crisis centres in England and Wales (Rape Crisis), which operate independently of each other. From 1996 to 2003, the centres were supported by a national Rape Crisis Federation, which was forced to close due to the withdrawal of funding from the Home Office (Dignan, 2005, p. 56). They are overseen by the Rape Crisis Coordinating Group (RCCG). Although the various centres are primarily financed through fundraising, the RCCG did receive a small grant from the Home Office in 2005 (Rape Crisis). Rape Crisis centres are predominantly run by volunteers, although there are usually one or two paid staff members (Williams, 1999, p. 93). Depending on resources, centres may run telephone helplines, provide counselling, accompany rape victims to hospitals and court proceedings, should they wish to be accompanied, and run support groups where victims may discuss their experiences with each other (Rape Crisis). Staff and volunteers are trained in non-directive counselling and provide long-term counselling, if necessary (Williams, 1999, p. 95). The emphasis is on support for victims and on a commitment to confidentiality. There is thus no pressure to report the rape to the police if the victim is unwilling to do so (ibid). In addition to its practical services for victims, Rape Crisis engages in advocacy in order to raise awareness of the patriarchal underpinnings of violence against women (Dignan, 2005, p. 56). It has thus contributed to the government’s recognition of the need to reform law and policy to better respond to rape victims’ lived realities of both primary and secondary victimisation (see Chapters 9 and 13). However, its commitment to radical feminist principles (see Chapter 2) has precluded it from devising an agenda that reflects the experiences of minority ethnic women. Most of the work with minority ethnic women who experience gender-based violence has been conducted by other organisations, such as the Southall Black Sisters (SBS), a London-based charity established in 1979. SBS adopts a critical race feminist approach to its work, emphasising the manner in which the intersection between race and gender frames minority ethnic women’s experiences of rape and domestic violence (see Chapter 2). SBS is primarily funded from

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non-governmental sources. It provides a range of services to women in its catchment area of Ealing. Such services include the provision of practical help and support by one of the organisation’s three case workers, as well as counselling, which includes psychotherapy and group support. SBS also runs a national telephonic advice service, and will refer women from outside its catchment area to appropriate support agencies (Southall Black Sisters). In addition to the services it provides, SBS is engaged in advocacy and campaigning in regard to domestic and other forms of gender-based violence. One of its more recent campaigns, for instance, concerns the issue of forced marriage. It has expressed concerns about the government’s reluctance to intervene in such cases, contending that non-intervention amounts to racism and that all women have a right to state protection (Southall Black Sisters). SBS also made submissions to the government in the course of the enactment of the Domestic Violence, Crime and Victims Act 2004, arguing for the provision of full protection to minority women who are victims of domestic violence and who are subject to immigration control and the ‘no recourse to public funds’ rule (Southall Black Sisters; see Chapter 13). Support and assistance for minority women who experience rape and domestic violence is also available from a range of other, smaller charities and non-profit organisations (see, for instance, AWAAZ). The Muslim Women’s Helpline provides a telephone listening service to Muslim women and girls in crisis situations, as well as practical assistance and referral to Islamic consultants (Muslim Women’s Helpline). For many minority ethnic women, it may be preferable to seek assistance from organisations such as the SBS, AWAAZ and the Muslim Women’s Helpline, because, unlike secular agencies, including Victim Support and Rape Crisis, these organisations are sensitive to their cultural and religious views and needs (Spalek, 2006, p. 110). Organisations responding to racism and Islamophobia In addition to the organisations that provide services to minority ethnic women, there are several organisations that focus on services to, and advocacy on behalf of, victims of racially motivated crime and Islamophobia (see Chapter 5). For instance, the Forum Against Islamophobia and Racism (FAIR), established in 2001, is an independent organisation that aims to eliminate racism and religious hatred against Muslims in the UK. It has been involved in several campaigns, including the Fair Justice for All Campaign launched in 2002 in the aftermath of the Bradford disturbances in 2001. The aim of this campaign was to challenge the disproportionate sentences imposed on those involved in the disturbances and to provide support for those in prison and their families (FAIR, Fair Justice for All Campaign). FAIR is a member of the Muslim Safety Forum, which, acting in conjunction with the police and other agencies, set up a crime-reporting scheme, Don’t Suffer in Silence, in Tower Hamlets, London, in 2004, to encourage Muslims

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to report religiously motivated crimes (FAIR). It also monitors and records incidents of Islamophobia (FAIR). However, it is primarily a campaigning organisation and does not provide counselling or practical assistance to victims. The Islamic Human Rights Commission also works to advocate the elimination of anti-Muslim victimisation. In 2001, it launched a campaign against hate crime aimed at tackling the increased incidence of anti-Muslim violence and harassment in the wake of September 11. In addition, it has monitored and reported on the incidence of such Islamophobic incidents in the UK (Islamic Human Rights Commission, 2002; see Chapter 5). Although it provides precautionary advice to Muslims and operates an online form for reporting antiMuslim harassment and hostility (Islamic Human Rights Commission), it does not provide counselling services. Despite the fact that these organisations are primarily engaged in advocacy rather than direct services to victims, they nonetheless qualify as ‘unofficial’ victim support agencies because their advocacy has assisted the government to recognise the need for a criminal justice response to victims of religiously motivated crime (see Chapter 13), which inures to the benefit of victims. Furthermore, their activities may also have contributed to Victim Support’s concern to extend its services to victims of racially and religiously motivated crime (Victim Support, 2006a). Organisations responding to homophobic and transphobic victimisation Several non-profit organisations exist to provide support and advocacy for members of the LGBT community who experience homophobic and transphobic crime, as well as secondary victimisation by criminal justice agencies, particularly the police (see Chapter 6). The Gay London Police Monitoring Group (GALOP) was established in 1982 with the aim of exposing police harassment directed, in particular, at gay men, and to provide a service to gay men who were victims of police harassment (GALOP). By 1990 GALOP had begun providing services to both gay men and lesbians, and by the end of the 1990s it was providing services to members of the LGBT community. In 2004 it officially included transgender persons within its remit (ibid). The services provided by GALOP include a helpline called ‘the Shoutline’ for members of the LGBT community to report homophobic or transphobic incidents and to receive advice and assistance for reporting such incidents to the police. It has also recently established a live online interactive help facility to enable victims to chat live online with one of the GALOP advisors (ibid). In addition, it provides assistance to victims who have difficulties with the police and is willing to report incidents to the police on victims’ behalf (ibid). GALOP also engages in research and advocacy in order to challenge and reduce the incidence of homophobia and transphobia (see Chapter 6). Stonewall, a non-profit organisation established in 1989, is primarily

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concerned with advocacy and campaigns for equality for LGBT persons and for the elimination of homophobic/transphobic discrimination and victimisation. Its campaigns include the Education for All campaign, which was launched in 2005 to assist in the task of eradicating homophobia and homophobic bullying in schools (Stonewall). Although it works with a range of community organisations to cater for the needs of LGBT persons, it does not provide individual support or assistance to victims of homophobic or transphobic victimisation. Advocacy and campaigning initiatives by GALOP and Stonewall have made a significant contribution to the increased awareness of homophobic and transphobic victimisation in recent times, and have arguably encouraged criminal justice agencies to develop policies to respond to such victimisation (see Chapter 13). They may also have played a role in Victim Support’s reassessment of its services to the LGBT community (Victim Support, 2006a).

Conclusion This chapter has shown that, with the aid of Victim Support, the UK has not only succeeded in discharging its obligations in terms of the Framework Decision to encourage victim support and assistance but has earned the reputation of being at the forefront of service provision in Europe. The absence of enforceable rights for victims (see Chapter 7) has thus not impeded the quality of victim support and assistance. Despite this achievement, however, take-up of services by victims from unequal social groups, particularly minority ethnic and LGBT victims, has been slow, due to structural and cultural barriers to reporting. However, the chapter has indicated that these victims do receive support and assistance from ‘unofficial’ agencies, whose activities, it has contended, may have contributed to the development of a concern on the part of the government as well as Victim Support to make provision for the needs of such victims.

Questions for further discussion

• • • •

How are the services provided by Victim Support being improved by the introduction of Victim Care Units? Is there a danger that government funding of Victim Support may undermine its independence, and how may this affect victims’ willingness to approach Victim Support? What are the roles of the Witness Service and Witness Care Units, and how may a potential overlap between these roles be avoided? How have the activities of the ‘unofficial’ support organisations aided victims?

Chapter 9

Information, respect and recognition, and protection

Introduction This chapter sets out the Council of Europe provisions concerning victims’ rights to information, to be treated with respect and to have their interests recognised, and to receive protection in appropriate circumstances. It considers the measures that have been adopted in English law and policy to give effect to these rights, particularly the Code of Practice for Victims of Crime 2005 (the Victims’ Code) and the Youth Justice and Criminal Evidence Act 1999 (YJCEA). It contends that, although these measures comply with European standards, the fact that the duties placed on criminal justice agencies in terms of the Victims’ Code are not enforceable, and the measures in the YJCEA are subject to judicial discretion, may undermine their effectiveness, particularly for vulnerable victims.

Council of Europe instruments The Framework Decision on the Standing of Victims in Criminal Proceedings (2001/220/JHA; see Chapter 7) imposes duties on Member States to ensure that criminal justice agencies provide victims with relevant information, respect and recognition, and protection. This section documents the provisions concerning each of these sets of duties. The duty to give information is regulated by article 4, which requires Member States to ensure that from the time victims come into contact with criminal justice agencies they have access to information that is relevant to ‘the protection of their interests’. Such information includes, amongst other things, details of the time when and the manner in which victims may report the offence, the nature of the procedures following upon such a report and the victim’s role in these procedures, and the manner and circumstances in which victims may obtain protection (article 4.1). In addition, victims who so desire must be kept informed of the result of their complaint, of the progress of the criminal proceedings involving ‘their’ offender (unless there are exceptional circumstances that may cause the proper conduct of the case to be deleteriously affected if

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such information is given) and of the sentence imposed by the court (article 4.2). Finally, article 4.3 provides that, where victims may be in danger, Member States must ensure that they are notified of the offender’s release. The duties enshrined in article 4, which clothes victims with a concomitant right to information, thus apply throughout the criminal process, from the laying of charges to the release of the offender (see article 6 of Recommendation Rec (2006) 8 on Assistance to Crime Victims (Rec (2006) 8), which contains similar provisions regarding victims’ right to receive information). The duties to treat victims with respect and to recognise their rights and interests are contained in article 2.1, which provides that Member States must ‘ensure that victims have a real and appropriate role’ in the criminal justice system, that they ‘are treated with due respect for the dignity of the individual during proceedings’ and that their rights and legitimate interests, particularly as regards criminal proceedings, are recognised. Allied to this, article 15 requires Member States to take steps to progressively create the requisite conditions to facilitate the prevention of secondary victimisation and the bringing of unnecessary pressure to bear on victims, particularly in venues such as courts and police stations. Although article 2.1 does not expressly refer to a right on the part of victims to be treated with respect and recognition of their interests, the fact that it places unconditional duties on Member States is an indication of the implicit recognition of such a right. As regards article 15, however, the state duty encompasses only the progressive creation of conditions that alleviate secondary victimisation and may thus give rise only to a legitimate interest rather than to a right on the part of victims. Article 8 imposes duties on Member States to provide victims with protection. Victims and, in appropriate circumstances, their families or others in an analogous position must be afforded ‘a suitable level of protection’ in cases where ‘a serious risk of reprisals’ exists or where there is evidence of a ‘serious intent to intrude upon their privacy’ (article 8.1). In such circumstances, appropriate measures must be taken in court proceedings to protect their ‘privacy and photographic image’ (article 8.2). Furthermore, contact between victims and offenders in court premises must be avoided, and special waiting areas for victims must progressively be provided (article 8.3). Significantly, article 8.4 provides that Member States must ensure that where victims, particularly those most vulnerable, require protection ‘from the effects of giving evidence in open court’, they may be permitted to testify in a way that will facilitate such protection, using any suitable means that accord with the principles of the relevant legal system (see article 10 of Rec (2006) 8, which contains analogous provisions concerning victim protection). Article 8 expressly grants victims a right in respect of these protective measures. The provisions of article 8 are supplemented by the non-binding Recommendation No. R (97) 13 concerning Intimidation of Witnesses and the Rights of the Defence (1997). Although Recommendation R (97) 13 relates to the protection of victims from some of the unequal social groups to be discussed in

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Chapter 13, such as victims of domestic violence, rape and elder abuse, its provisions also apply to vulnerable victims more generally. It is accordingly discussed in the present context of the right to protection. In terms of article 17, Member States must take ‘legislative and practical measures’ to protect such witnesses from intimidation and to alleviate pressure when they testify against members of their family in criminal cases. Special protection must be given to children (article 19) and victims of domestic violence and elder abuse (article 21). Article 27 recommends the use of pre-recorded video statements in order to avoid ‘face to face confrontation and unnecessary repetitive examination’ and provides for the use of audiovisual techniques during the trial to enable the court to hear the witnesses out of each other’s physical presence. Furthermore, article 28 provides that the judge must closely supervise the examination of the witness and in cases, particularly sexual offence cases, where cross-examination may unduly traumatise a witness, they must ‘consider taking appropriate measures to control the manner of questioning’. Article 23 emphasises that criminal justice agencies must attempt to avoid causing secondary victimisation to vulnerable witnesses.

English law and policy The above discussion indicates that the Council of Europe has imposed comprehensive duties on Member States concerning victims’ rights to information, respect and recognition, and protection. This section evaluates current English law and policy to determine whether the government has discharged these duties in regard to victims generally, as well as vulnerable and intimidated victims (see Chapter 13 for a detailed discussion of the government’s duties and criminal justice responses vis-à-vis victims of gender-based violence, racially and religiously motivated crime, homophobic and transphobic crime, and elder abuse). In order to facilitate the analysis, the discussion proceeds sequentially through the various stages of the criminal process, commencing with the pre-trial process and concluding with the release of the offender. Pre-trial process The pre-trial process usually commences with the victim making a complaint to the police and encompasses the police investigation and the decision of the Crown Prosecution Service as to whether or not to prosecute. It may also include a police referral to Victim Support and the making of a compensation claim. In view of the fact that the latter stages concern other rights, namely the right to support and assistance and the right to compensation (see Chapters 8 and 11 respectively), they are not addressed in this section. A further stage that may occur prior to the trial is the stage of plea-bargaining, in which the CPS and the defendant agree on an appropriate plea, usually to a lesser offence. This stage involves the right of victims to be heard (see Chapter 10) and is also not

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considered in this section. The following discussion is accordingly restricted to the duties imposed on the police and the CPS to ensure that victims are given information, respect and recognition, and protection during the pre-trial stage. Police Paragraph 5 of the Victims’ Code (see Chapter 7) imposes a series of duties on the police as regards the provision of information to victims who report offences. The police are required to ensure that victims have access to information about Victim Support and other local support services (para 5.3). In all cases, apart from minor property offences (para 5.5) and sexual offences, domestic violence and homicide unless the victim expressly consents (para 5.6), they must explain to victims that their details will be passed to Victim Support unless they do not wish this to be done (para 5.4). In cases where no suspect has been brought into the criminal justice process, the police must inform victims of the progress of the case until the investigation is closed (para 5.9). They must also inform victims of the reasons for not charging a suspect (para 5.10). Where a suspect is arrested, the police are required to notify victims of all the key events in the criminal justice process, including arrest, release on bail, and decisions to prosecute or not to prosecute (paras 5.14–5.26). Duties regarding the protection of vulnerable and intimidated witnesses are also imposed on the police. They are required to ‘take all reasonable steps to identify vulnerable or intimidated victims’ and, if such victims are eligible for special measures and are required to testify, they must explain these measures to them (paras 5.7, 5.8). In addition, the police are under a duty to provide vulnerable and intimidated victims with all the information referred to above more speedily (usually within one working day) than is required for other victims. Apart from the duties imposed on the police in terms of the Victims’ Code, the Association of Chief Police Officers (ACPO) has produced various guidelines for police to follow in responding to the needs of victims, particularly those from unequal social groups. The various police forces have also established internal policies for responding to such needs (see Chapter 13). Crown Prosecution Service Although the Victims’ Code imposes duties on the CPS, it may do so only to the extent that such duties do not relate to the discharge by the CPS of a function involving the exercise of a discretion (s 32(5)(b) of the Domestic Violence, Crime and Victims Act 2004; see Chapter 10). The duties imposed by the Victims’ Code regarding the provision of information, respect and recognition, and protection are thus formulated in a way that avoids restricting the CPS’s discretion.

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In relation to the provision of information, the CPS is required to inform victims of decisions to charge, decisions that there is insufficient evidence to bring a prosecution, and decisions to alter or drop any charge, unless it takes the view that such notification is ‘inappropriate or unnecessary’ or that legal reasons prohibit the provision of any ‘explanation beyond setting out the tests in the Code for Crown Prosecutors’ (paras 7.2–7.5). The CPS must also explain the reasons for delays to the proceedings and provide victims with an indication of the likely length of the delay (para 7.10). The Victims’ Code imposes certain duties on the CPS to respect and recognise the interests of victims. In cases involving homicide, child abuse, sexual offences, racially and religiously motivated crimes and homophobic or transphobic crimes, the CPS must offer to meet the victims if they decide not to bring a prosecution or to drop or alter the charges, unless it adopts the view that the circumstances are such that no meeting should take place. If this view is taken, the prosecutor must record his or her reasons in writing (paras 7.6, 7.7; see Chapter 13). Prosecutors are also required to introduce themselves to victims at court, if possible, and to answer any questions that victims may have (para 7.9). In addition, para 7.8 imposes duties on the CPS relating to the protection of vulnerable and intimidated witnesses. The CPS must ensure the existence of procedures to assist prosecutors to decide whether or not to apply for a special measures direction in cases involving vulnerable or intimidated witnesses (see below). Over and above the duties contained in the Victims’ Code, the CPS has established policies for responding effectively to certain groups of socially unequal victims, such as victims of rape, domestic violence, racially and religiously motivated crime and homophobic/transphobic crime (see Chapter 13). Court process The court process commences with the defendant entering a plea. If the plea is one of guilty, there is no trial and the imposition of sentence follows. Victims may provide a Victim Personal Statement documenting the impact of the crime, which is considered at the sentencing stage. However, as this engages victims’ right to be heard, it is not considered in this section (see Chapter 10). If the defendant pleads not guilty, the trial takes place and, if s/he is convicted, the court imposes a sentence. Although the process often terminates at this stage, it may continue if the prosecution or defence lodges an appeal. While victims must be given information concerning the lodging of appeals and their outcome (see below), they do not play a role in appeals. This section considers victims’ entitlements to information, respect and recognition, and protection throughout this process. It documents the duties that have been placed on the Court Service by the Victims’ Code as well as the discretionary powers of the court in the YJCEA and the Criminal Justice Act

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2003 (CJA 2003) to ease the traumatic process of testifying in the case of vulnerable and intimidated witnesses. However, in view of the fact that the duties imposed on Witness Care Units in terms of the Victims’ Code span the pre-trial and trial processes, this section commences with a discussion of these duties. Witness Care Units The Victims’ Code imposes duties only regarding the provision of information on the joint police/CPS WCUs. In terms of para 6.3, WCUs must notify victims if they are required to give live evidence. In addition, they must provide adult witnesses with the ‘Witness in Court’ leaflet, and witnesses under the age of 17 in cases involving sex, violence or cruelty with the ‘Young Witness’ information pack (paras 6.5, 6.6). These documents contain the information necessary to equip witnesses with knowledge of matters such as the court layout and what is expected of them when they testify. WCUs must also notify victims of the outcome of all pre-trial hearings, the dates of all court hearings, the verdict and/or sentence handed down, the details of appeals lodged and the results of such appeals. They must explain the meaning and effect of any sentence that is imposed, and answer any questions the victim may have (paras 6.7–6.9). Apart from providing support and assistance to victims (see Chapter 8), the purpose of WCUs is to act as conduits between criminal justice agencies, such as the police, the Court Service and the Probation Service (see below), on the one hand, and victims, on the other, in order to facilitate the smooth flow of information. Court Service The Victims’ Code imposes several duties on the Court Service to relay information to victims through WCUs and the police. The Court Service is required to notify the WCUs of the court dates for hearings, as well as decisions concerning bail, all later hearings, adjournments, postponements, appeals and the outcome of appeals (paras 8.2, 8.3, 8.9–8.12). As regards bail decisions, the duty also extends to notifying the police (para 8.3). In addition, the Court Service must ensure, if possible, that the court building has an information point where victims can obtain information about their case (para 8.8). The Court Service also has duties to provide victims with respect and recognition of their interests. It must ensure, if possible, that victims do not have to wait more than two hours to give evidence, and must take their telephone numbers in order that they may leave the court building and be contacted when they are required to testify (paras 8.6, 8.7). In addition, the Victims’ Code imposes duties to protect victims, particularly vulnerable and intimidated witnesses. The Court Service is required to ensure that victims have access to separate waiting areas and seats in the courtroom that are not in proximity to

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the defendant’s family and friends (para 8.4). They must also ensure that special measures are available, if possible, in cases where the court has made a special measures direction in regard to vulnerable and intimidated witnesses (para 8.5; see below). Measures to reduce secondary victimisation in court Chapter 4 documents the secondary victimisation experienced by victims of rape and domestic violence during the court process, particularly while testifying and undergoing cross-examination. Other vulnerable victims, such as children, also experience this process as traumatic (Ellison, 2001, p. 12). This section considers the provisions of the YJCEA and the CJA 2003 that attempt to alleviate secondary victimisation by permitting witnesses to testify using special measures, by placing restrictions on sexual history evidence, cross-examination and reporting of cases, and by admitting hearsay evidence in certain circumstances. The aim of these measures is to provide protection to vulnerable and intimidated witnesses, as required by article 8 of the Framework Decision and Recommendation R (97) 13 (see above). (I) SPECIAL MEASURES

Sections 16 and 17 of the YJCEA permit the use of special measures to assist vulnerable and intimidated witnesses to give evidence. Section 16, which deals with vulnerable witnesses, provides that a witness is eligible for such assistance if s/he is under the age of 17 at the time of the hearing, or if the court is of the view that the quality of the evidence is likely to be reduced because s/he has a mental disorder, ‘a significant impairment of intelligence and social functioning’, or a physical disability or disorder. In terms of s 17(1), a witness is eligible for special measures if, in the court’s opinion, the quality of the evidence is likely to be reduced on account of the witness’s fear or distress regarding the giving of evidence. The court must consider several factors to determine whether this is the case, including the witness’s age, social and cultural background, ethnic origins, domestic circumstances and religious beliefs (s 17(2)). In terms of s 17(4), victims who are witnesses in sexual offence cases are automatically eligible for special measures unless they inform the court that they do not wish to be eligible. Section 21 provides for special assistance for child witnesses (persons under the age of 17), particularly child witnesses who are in need of special protection, viz those testifying in sexual offence, kidnapping and assault cases, amongst others. The court must admit pre-recorded video evidence by child witnesses and allow them to give any evidence that has not been pre-recorded by way of live television link, provided that the necessary measures are available (s 21(3), s 21(4)(a)). However, except in the case of child witnesses in need of special protection, the court may dispense with such measures if it does not

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think that they would ‘be likely to maximise the quality of the witness’s evidence’ (s 21(4)(c), s 21(5)). In addition to the requirements of s 21, the YJCEA provides for a range of special measures that apply to s 16 and s 17 witnesses. Such measures include giving evidence from behind a screen in order that the witness does not see the defendant (s 23), testifying by way of a live television link (s 24; see also s 51 CJA 2003), and excluding persons other than the accused, legal representatives and interpreters from the courtroom while a witness is testifying in sexual offence cases or where there are reasonable grounds to believe that a witness may be intimidated (s 25). The court may also dispense with the wearing of wigs or gowns while the witness testifies (s 26). Furthermore, a video recording of an interview with the witness may be admitted as his/her evidence-in-chief (s 27). However, if the judge is of the view that the interests of justice dictate that the video-recorded evidence must not be admitted, s/he will not grant a special measures direction to this effect (s 27(2)). The YJCEA permits two other special measures that apply only to s 16 witnesses, viz the use of intermediaries (s 29) and the use of devices to enable the witness to communicate or receive questions and answers despite having a disability, disorder or other impairment (s 30). It is for the court to decide whether any one or more of the special measures will be likely to improve the quality of the witness’s evidence and, if so, which measure(s) will be likely to do so. If it decides to permit the special measures, it must make a special measures direction in the appropriate terms (s 19(2)). Special measures are always made subject to their availability in the relevant court (s 18). If evidence has been given by means of special measures in a jury trial, the court must warn the jury that this must not be allowed to prejudice the defendant (s 32). The House of Lords has held1 that the special measures provided in s 21 YJCEA do not violate the defendant’s right to examine witnesses in terms of article 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR; see Chapter 7) and it is unlikely that the other special measures will be found to be inconsistent with this right. However, despite their compliance with the ECHR and the government’s commitment to them, several barriers exist to the regular use of special measures. Ellison has contended that the courts’ continued preference for oral testimony has impeded the utility of special measures for sexual assault complainants (2000, p. 53) and that the acceptance of such measures necessitates a dramatic change in courtroom culture on the part of both prosecution and defence (Quinn, 2003, p. 142; see also, Ellison, 2001, pp. 60–1). In addition, the fact that the YJCEA makes the use of special measures subject to availability rather than

1 R (D) v Camberwell Green Youth Court; R (Director of Public Prosecutions) v Camberwell Green Youth Court [2005] 2 Cr App R 1.

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requiring courts to ensure that they are available restricts the opportunities to use them. Furthermore, the discretion to refuse to admit video-recorded testimony if it is regarded as against the interests of justice may be used by judges to impede victims’ access to this measure. Barriers such as these are likely to mean that, with the exception of child witnesses in need of special protection, special measures may not become the norm for vulnerable or intimidated witnesses. Despite the fact that special measures comply with the government’s duties to give effect to the right to protection in article 8 of the Framework Decision, the existence of these barriers hinders the practical realisation of this right. (II) RESTRICTIONS ON SEXUAL HISTORY EVIDENCE

The purpose of s 41 of the YJCEA is to provide protection to rape victims from traumatic and intrusive cross-examination concerning their sexual past that causes severe secondary victimisation in the court process (see Chapter 13 for a discussion of other measures to reduce such secondary victimisation). Section 41(1) provides that, in sexual offence cases, no evidence or question under crossexamination concerning the victim’s past sexual behaviour may be adduced or asked by or on behalf of the defendant, unless the court permits it. In terms of s 41(2), the court may permit sexual history evidence to be led in specifically delineated circumstances, provided that it is satisfied that to refuse leave may render the conclusion of the jury or court unsafe on a ‘relevant issue in the case’. The first such circumstance is where the evidence or question, although relating to a ‘relevant issue’, does not relate to ‘an issue of consent’ (s 41(3)(a)). A primary example is the defendant’s belief in consent, as opposed to the existence or otherwise of consent itself. In view of the fact that many defendants argue, as an alternative to a contention of consent, that they believed that the victim consented, this provision generates a legal loophole that will enable many defendants to succeed in having sexual history evidence admitted (Temkin, 2002, p. 210). The second exceptional circumstance applies where the evidence or question concerns a relevant ‘issue of consent’ and relates to sexual behaviour of the victim which the defence alleges occurred ‘at or about the same time’ as the incident giving rise to the charge (s 41(3)(b)). Temkin has pointed out that this provision permits evidence that, for example, the victim had sexual relations with her partner around the time of the rape, and has argued that the admissibility of such evidence is premised on the myth that a woman who had been raped would not have behaved in this manner (2002, p. 213). The third exception arises if the evidence or question concerns a relevant ‘issue of consent’ and relates to sexual behaviour of the victim which the defence alleges was ‘so similar’ either to any such behaviour which occurred as part of the incident giving rise to the charge or to any of the victim’s other sexual behaviour which occurred ‘at or about the same time’ as this incident, ‘that the similarity cannot reasonably be explained as a coincidence’ (s 41(3)(c)).

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Kibble provides a fictitious example that illustrates the application of this provision. A woman was gang raped by several men whom she had met for the first time on the evening of the alleged rape, with whom she had been drinking and dancing, and with whom she had left voluntarily. The defendants wished to lead witnesses to testify that the victim had engaged in similar conduct three weeks prior to the event, that, at that time, she had suggested sexual behaviour, as she had done at the time of the alleged rape, and that she had accordingly consented to the sexual intercourse (Kibble, 2005, pp. 195–7). To admit evidence of this nature is to give credence to the myth that women who have consented to morally reprehensible conduct in the past must have done so at the time of the offence. The last exception applies where the evidence or question relates to evidence adduced by the prosecution about the victim’s sexual behaviour, and such evidence or question would not, in the court’s opinion, go further than is necessary to rebut or explain the prosecution’s evidence (s 41(5)). If, for example, the prosecution lead evidence that the victim was a chaste married woman, defence evidence that she had committed adultery would be admissible in terms of this provision. Section 41(4) provides that no evidence or question may be viewed as concerning ‘a relevant issue in the case’ if the court is of the view that it may reasonably be assumed that the purpose (or primary purpose) of the evidence or question is to impugn the victim’s credibility. In the decision in R v Martin,2 the Court of Appeal diluted the effect of this restriction. It held that, if one of the purposes of the evidence or question was to impugn the victim’s credibility, such evidence or question is admissible, as long as the impugning of the victim’s credibility was not ‘the purpose’ or ‘the main purpose’ of such evidence or question (para 37). The aim of s 41 was to render irrelevant the victim’s past sexual behaviour with the defendant or with third parties, unless it fell within the purview of the above exceptions. However, the restriction of the court’s discretion to admit sexual history evidence to these exceptions (most of which already allow the infusion of rape myths, as explained above) has been lifted by the House of Lords in R v A.3 The court, per Lord Steyn, took the view that the provisions of s 41, in particular s 41(3)(c), insofar as they relate to previous sexual conduct between the victim and the defendant, were to be interpreted as subject to the defendant’s right to a fair trial in terms of article 6 ECHR (para 45). Lord Steyn stated that the test was whether the evidence or question was ‘so relevant to the issue of consent that to exclude it would endanger the fairness of the trial’. If it was so relevant, it ought not to be excluded (para 46). The trial judge should use his/her discretion to determine whether this test was satisfied (para 45). The

2 [2004] 2 Cr App R 22. 3 R v A (No. 2) [2001] 2 Cr App R 21.

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court thus reinstated the judicial discretion to allow sexual history evidence pertaining to past sexual conduct between the victim and the defendant, which it had been the aim of s 41 to remove. Temkin has argued that, as the court did not clarify when a prior relationship between the victim and the defendant would be irrelevant, it is likely that evidence concerning such relationship ‘will generally be admitted in the future for fear of a successful appeal’ (2002, p. 224). The judiciary has not had a particularly encouraging record of sensitivity to victims in the context of its attitude to sexual history evidence (Lees, 2002, p. 151; Temkin, 2003, pp. 219–21). The discretion to permit evidence of past sexual relations between defendants and victims reinstated in R v A may thus be used expansively by the judiciary. The legislature’s attempt to protect rape victims from secondary victimisation has accordingly not been entirely successful. On the one hand, the provisions of s 41 themselves allow the admission of sexual history evidence that draws on rape myths in some cases (see above). On the other hand, R v A has re-opened the door to the admission of the sexual history between victims and defendants on the basis of gendered conceptions of women’s sexuality. While such loopholes will in all probability be regarded as compliant with European standards on account of the importance of balancing the rights of victims and defendants, they nonetheless place rape victims in an unenviable position. Temkin has contended that the position of rape victims in this respect may be ameliorated by the introduction of victims’ lawyers (2003, p. 241; see Chapter 10). (III) RESTRICTIONS ON CROSS-EXAMINATION

Prior to the enactment of the YJCEA, the secondary victimisation of rape victims in court was frequently exacerbated by bullying tactics employed by unrepresented defendants who cross-examined victims in person (Temkin, 2002, pp. 320–1). Behaviour indicative of such bullying ranged from the defendant wearing the same clothes in court as he had at the time of the rape to asking the complainant ‘intimate questions about sex, her sexual health, and her underwear’ (Temkin, 2002, pp. 320–2). Concerns about the protection of victims prompted the enactment of s 34 of the YJCEA, which provides that the defendant in a sexual offence case may not cross-examine the victim in person in connection with the sexual offence (or any other offence) with which he is charged (see Chapter 13 for a discussion of other measures to reduce secondary victimisation experienced by rape victims). Section 35 takes cognisance of the fact that defendants who represent themselves may also employ bullying tactics in other cases, such as child abuse. Section 35(1) accordingly provides that no defendant may cross-examine in person a protected witness in connection with an offence covered by s 35, or in connection with any other offence with which s/he is charged. Section 35(2)

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defines a protected witness as one who is the complainant or a witness to the commission of the relevant offence, and who is either a child or who is to be cross-examined after having given evidence by way of a video-recording or other evidence made or given at the time he or she was a child. The offences covered by s 35 include sexual and physical offences against children (s 35(3)). Section 36 grants the court discretion to refuse to permit a defendant to cross-examine in person in cases other than those covered by s 34 and s 35. The court may exercise this discretion if it is of the view that it is likely that the quality of the witness’s evidence given under cross-examination would be reduced if the defendant cross-examines in person and would be improved if such cross-examination were disallowed, and that the prohibition of such cross-examination would not be against the interests of justice. The courts thus have the power to protect vulnerable victims other than victims of rape and child abuse from experiencing secondary victimisation at the hands of defendants. In order to avoid violating the defendant’s right to a fair trial in terms of article 6 ECHR, s 38 provides that steps must be taken to ensure that the defendant is legally represented. The court must first ask the defendant to find a lawyer to cross-examine on his/her behalf (s 38(2)). If the defendant does not do so, the court must determine whether the interests of justice require the appointment of a legal representative to cross-examine the victim (s 38(3)) and, if so, it must appoint such a legal representative (s 38(4)) at state expense (s 40). Section 39 provides that, if it considers it necessary, the court must warn the jury that the defendant must not be prejudiced either by inferences being drawn from his/her inability to cross-examine the victim in person, or by the fact that a court-appointed lawyer rather than the defendant’s own lawyer conducted the cross-examination. These provisions have removed a particularly traumatic aspect of eligible victims’ experiences of cross-examination, reflecting the government’s commitment to victims’ right to protection. However, they do not go far enough. Victims of rape and domestic violence experience secondary victimisation not only under cross-examination by defendants in person but also under crossexamination by defence counsel (see Chapter 4). In addition, other vulnerable victims, such as child abuse victims, are traumatised by lawyers for the defence (Ellison, 2001, p. 13). Ellison states that it is disappointing that the debate about the negative effects of cross-examination has focused on ‘the infrequent, albeit harrowing, ordeal of cross-examination by an accused in person, ignoring the much more frequent and often equally disturbing experience of crossexamination by defence counsel’ (Quinn, 2003, p. 148). Chapter 10 contends that lawyers for victims, clothed with the power to object to belligerent or aggressive defence questioning, will be able to protect them from the more traumatic aspects of this ordeal.

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(IV) HEARSAY EVIDENCE

The admission of hearsay evidence in certain circumstances may free frightened witnesses from the traumatic experience of cross-examination by defence counsel. Prior to the enactment of the CJA 2003, the circumstances in which hearsay evidence was admissible where witnesses refused to testify through fear were regulated by the Criminal Justice Act 1988 (CJA 1988; see below). The CJA 2003 has widened these circumstances. In terms of s 116(1), read with s 116(2)(e), a statement not made in oral evidence is admissible as evidence of any matter stated if it is made by a person whose oral evidence on that matter would have been admissible in court; the person has been identified to the court’s satisfaction; through fear, the person does not testify (or continue to testify) orally, ‘either at all or in connection with the subject matter of the statement’; and the court permits the statement to be adduced as evidence. Section 116(3) provides that the term ‘fear’ must be construed broadly, and that it includes, for example, ‘fear of the death or injury of another person or of financial loss’. In terms of s 116(4), the court may allow the admission of such a statement only if it is of the view that the interests of justice so require. In coming to its decision, the court must consider the contents of the statement; the risk that unfairness will be caused to any party by admitting or excluding the statement, with particular regard to the difficulty of challenging the statement if the person does not adduce evidence orally; the fact that a special measures direction in terms of s 19 of the YJCEA may be made; and any other circumstances that may be relevant (s 116(4)(a)–(d)). However, the court may nonetheless exclude the statement if it is of the view that ‘the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence’ (s 126(1)(b)). In addition, s 126(2) preserves the discretionary power of the court to exclude such a statement in terms of s 78 of the Police and Criminal Evidence Act 1984 as well as any other relevant discretionary power. The provisions of s 116 have broadened the circumstances in which the statements of witnesses who are afraid to testify were admissible in terms of the CJA 1988. Section 23(1), read with s 23(3), of the CJA 1988 provided that a firsthand hearsay statement contained in a written document made to a police officer or another person ‘charged with the duty of investigating offences or charging offenders’ by a person who did not give oral evidence, inter alia, because of fear, was admissible. Unlike s 23, s 116 applies to oral as well as written statements and does not require that the statement be made to a police officer. In addition, ‘fear’ is broadly construed. O’Brian states that the report of the Law Commission which preceded the CJA 2003 ‘suggests that it would be enough to trigger this provision if the witness is “just scared of the process of giving evidence” ’ (O’Brian, 2005, p. 484). The courts have taken the view that the admission of hearsay evidence in the

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circumstances contemplated in s 23(1), read with s 23(3), of the CJA 1988 is compatible with the defendant’s right to examine witnesses in article 6(3)(d) ECHR, even if the evidence is the ‘sole or decisive evidence’ against the defendant.4 They have emphasised, however, that courts must ensure that these hearsay provisions, as well as those contained in s 116 of the CJA 2003, are not abused5 (see Chapter 7). Despite the courts’ willingness to adopt an expansive approach to the compatibility of the hearsay provisions with article 6 ECHR, they are nonetheless reluctant to permit hearsay evidence in cases involving victims of racially and religiously motivated crime and homophobic and transphobic violence, where the victim is the only witness (see Chapter 13). The courts’ emphasis on the importance of carefully scrutinising the relevant hearsay evidence, as well as the need to ensure that the defendant’s right to confront is upheld where possible (see above), may thus have the consequence that the fear that victims from unequal social groups experience in regard to the defendant and/or to the process of giving evidence will not be regarded as sufficient to deny the defendant the right to confront them, except in the most serious of cases. In view of the fact that such victims are among those who experience the most fear, often to the extent that they do not involve the criminal process (see Chapters 4, 5 and 6), this judicial reluctance impedes the use of hearsay evidence in cases involving victims who have the greatest need for protection. While the hearsay provisions comply with the government’s duty to uphold victims’ right to protection, they may thus nevertheless be less than effective in practice. (V) RESTRICTIONS ON REPORTING

The YJCEA provides for the protection of the identity and other personal details of certain victims who testify in court, to ensure that they are not exposed to intimidation or other trauma as a consequence of testifying. In terms of s 45, a court may direct that, during court proceedings, the personal details or images of a witness who is under the age of 18 may not be published if such publication is likely to cause people ‘to identify him [or her] as a person concerned in the proceedings’. Likewise, s 46 provides that a court may, on application, give a reporting direction concerning adult witnesses in certain circumstances. This is a direction to the effect that the witness’s personal details or images may not be published during his or her lifetime if such publication is likely to cause people ‘to identify him [or her] as being a witness in the proceedings’. Section 46(2) provides that the court may make such a direction if it determines that the witness is eligible for protection, and that the direction may improve the quality

4 R v Sellick and Sellick [2005] 2 Cr App R 15 at paras 51–2. 5 R v Sellick and Sellick [2005] 2 Cr App R 15 at para 57.

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of the witness’s testimony or the degree of the witness’s co-operation. Section 46(3) provides that a witness is eligible if the court takes the view that the quality of the witness’s evidence or the degree of his or her co-operation ‘is likely to be diminished by reason of fear or distress . . . in connection with being identified by members of the public as a witness in the proceedings’. In terms of s 46(4) and s 46(5), the court must consider several factors in determining a witness’s eligibility, including his or her age, social and cultural background, ethnic origins, domestic circumstances, religious beliefs, as well as any views expressed by the witness. These provisions are potentially applicable to victims from unequal social groups (see Chapter 13), such as victims of domestic violence and racially and religiously motivated crime, in order to circumvent fear of possible reprisals by members of the victim’s or the defendant’s family or the public generally. In addition, they may protect victims of homophobic and transphobic violence and harassment from having the details of their private lives and sexuality being placed in the public domain, and of having to face the possibility of further victimisation on account of their sexuality. These reporting restrictions thus comply with the injunction in article 8 of the Framework Decision to protect such victims’ safety and privacy. Release of offenders The final stage in which some victims may potentially be involved in the criminal process is the stage at which the offender is released. The DVCVA, supplemented by the Victims’ Code, equips victims with the right to receive relevant information concerning the release of sexual and violent offenders, and empowers them to ‘make representations’ concerning conditions for the offenders’ release. Although the right to make representations falls within the purview of victims’ right to be heard (see Chapter 10), it is included in this section in view of its statutory relation to the right to receive information. Section 35 of the DVCVA provides that, in cases where the offender has been convicted of a sexual or violent offence and has been sentenced to at least 12 months’ imprisonment or detention, the local probation board ‘must take all reasonable steps’ to determine whether the victim wishes:

• •

to make representations concerning ‘whether the offender should be subject to any licence conditions or supervision requirements’ upon his or her release and, if so, what these conditions or requirements should be; and to receive information about the licence conditions or supervision arrangements (if any) that are to apply to the offender upon release (s 35(1)–(5)).

Section 35(6) provides that, should the victim make such representations, the probation board must forward them to the relevant decision-making body. In terms of s 36(7), if the victim wishes to receive the above information, the

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probation board ‘must take all reasonable steps’ to provide information concerning the licence conditions or supervision arrangements relating to contact between the offender and the victim (and his or her family), and any other appropriate information. Sections 36–44 contain similar provisions regarding victims’ rights to receive information and make representations in cases where offenders convicted of sexual or violent offences are given, inter alia, hospital orders and hospital directions rather than prison sentences. These provisions of the DVCVA are supplemented by the Victims’ Code. In terms of para 6, WCUs are under a duty, in cases where offenders convicted of sexual or violent offences are sentenced to prison for 12 months or more (or are given hospital orders, hospital directions, etc.), to provide the victim with a copy of the ‘National Probation Service Victim Contact Scheme’ leaflet and to refer the victim’s details to the Probation Service. This is to ensure that victims are informed about their rights to receive information and make representations concerning the release of such offenders, and to make the Probation Service aware of these victims’ potential interests in the matter. Paragraph 10 of the Victims’ Code reiterates the above duties imposed on probation boards by the DVCVA. In addition, para 11 states that the Probation Service has the discretion, in consequence of information obtained from a victim, to recommend the inclusion of conditions concerning non-contact or exclusion on prisoners’ licences. It also provides that prisons must ensure that information concerning conditions in prisoners’ licences is given to the Probation Service to enable it to notify the victim accordingly. Moreover, the National Offender Management Service must ensure that victims are able to telephone the Prison Service helpline if they receive unwanted contact from a prisoner or if they wish to voice concerns about the prisoner’s release. Paragraph 12 requires the Parole Board to consider any representations made by victims and provides that these considerations must be reflected in parole decisions. The Probation Service must be informed of any conditions that apply to victims, in order that it may notify victims. Furthermore, the Parole Board is required to ‘consider any information regarding the victim that relates directly to the current risk presented by a prisoner in deciding whether or not to grant or recommend release and reflect this in the parole decision’. Effectiveness of measures Although it appears from the above discussion that all the measures concerning the provision of information, respect and recognition, and protection to victims comply with European standards, there are nonetheless significant barriers to their effectiveness. The duties contained in the Victims’ Code are not enforceable, merely entitling victims to complain to the relevant criminal justice agencies if they are not discharged. Unlike the position in the US, victims who face intransigent agencies have no legal standing to enforce compliance by means of court action (see Chapter 7). In view of the evidence that suggests that agencies,

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such as the police, do not always comply with their duties, particularly as regards victims from unequal social groups (see Chapters 4, 5, 6 and 13), this lack of standing places victims in a weak position as regards the protection of their rights. Furthermore, with the exception of special measures for child witnesses in need of special protection and the prohibition of cross-examination by the defendant in person in sexual offence cases and cases involving protected child victims, all the measures in the YJCEA discussed above are subject to judicial discretion. Victims thus have no right to insist that these measures be employed by the court. Even the right to receive information concerning the release of sexual and violent offenders, which is statutorily entrenched, does not give rise to an unconditional duty on the part of the Probation Service to provide such information, but merely a duty to take all such steps as are reasonable. The criterion of ‘reasonableness’ is notoriously vague, making it possible for the Probation Service to sidestep its duties without victims being able to insist on receiving the information, despite the fact that they may be able to institute proceedings for judicial review of the decisions of the Probation Service in this respect (see Chapter 7). While the existence of all these measures is certainly a welcome sign that the government is taking its duties to victims seriously, the barriers to their effectiveness in practice are cause for concern. Chapter 7 has contended that one way of improving victims’ position, which would apply to the duties in terms of the Victims’ Code, is to enact enforceable victims’ rights which grant victims legal standing to enforce the discharge of these duties by court action. A further means of empowering victims, in the context of court proceedings involving judicial discretion, is to grant them party status in criminal proceedings with concomitant procedural rights (see Chapter 10).

Conclusion This chapter has surveyed English law and policy regarding the provision of information, respect and recognition, and protection to victims in the light of the state duties imposed in the Framework Decision, supplemented by nonbinding Recommendations. It has found that existing measures comply with these duties, but that there is considerable room for improvements to be made to ensure that victims, particularly those from unequal social groups, are able to exercise their rights effectively in practice. It has contended that the introduction of enforceable rights for victims (see Chapter 7), as well as the recognition of victims as parties to criminal proceedings (see Chapter 10), are the most appropriate means of enhancing the practical realisation of these rights.

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Questions for further discussion

• • • • •

How does the Victims’ Code ensure that victims receive information that is relevant to ‘the protection of their interests’ as required by article 4 of the Framework Decision? In what ways does the Victims’ Code provide for the respect of victims and the recognition of their interests? What measures are available in English law and policy for the protection of vulnerable victims? What barriers may prevent victims from exercising their rights to receive information, respect and recognition, and protection? How should the UK overcome these barriers without unduly restricting defendants’ rights?

Chapter 10

Victim participation

Introduction In view of their status as witnesses for the prosecution, victims have no legally enforceable right to participate in the English criminal process. The extent to which their inability to participate has exacerbated their experiences of secondary victimisation, particularly in serious offences, such as rape and domestic violence, has been demonstrated in Chapter 4. Even victims of less serious offences may find the criminal process intimidating. In order to reduce this secondary victimisation, reforms have been introduced recently permitting victims a limited degree of participation. As regards the pre-trial process, the CPS is now required to consider the effect on victims of its decisions to continue or discontinue prosecutions and to accept defence pleas. In addition, victims may make Victim Personal Statements indicating the impact of the offence, which must be considered by the court at the sentencing stage. The UK is also conducting pilot projects concerning the use of Family Impact Statements (FIS) and lawyers for the families of homicide victims at sentencing. This chapter considers these reforms against the backdrop of the relevant Council of Europe provisions. In order to demonstrate their shortcomings, it engages in an analysis of the legal provisions for victim participation in the US, Germany, Sweden and the Netherlands. It contends that victim participation in the US, which permits Victim Impact Statements and, in certain circumstances, also victim statements of opinion on sentencing, may facilitate the infusion of a punitive law and order ideology that infringes defendants’ due process rights and provides limited avenues for real victim empowerment. However, it adopts the view that the recognition of victims’ lawyers in the US is a welcome indication of the willingness of an adversarial system to incorporate traditionally inquisitorial elements. The chapter also shows that auxiliary prosecution, which is employed in several European jurisdictions, accords victims of serious offences far-reaching procedural rights that significantly reduce secondary victimisation. In addition, victims’ lawyers for victims of less serious offences give victims a fairly strong voice in the criminal process. The chapter assesses the use of these procedures in

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German law (an inquisitorial system) and Swedish law (which has adversarial trials) in order to demonstrate their compatibility with both inquisitorial and adversarial processes. It argues that, by virtue of their success in Swedish law, they are amenable to introduction in the UK. The chapter also assesses Dutch adhesion proceedings, in terms of which victims may join their civil claims for compensation to the criminal proceedings. It contends that, in view of the existence of compensation orders, this procedure would be of limited use in the UK and should not be introduced. The final section of the chapter addresses the potential conflict between active victim participation and defendants’ due process rights. It argues that, in view of the growing convergence between adversarial and inquisitorial systems, as well as the recognition of a broad concept of a fair trial that encompasses both defendants’ and victims’ rights, active participation by victims does not infringe the rights of defendants, provided that victims are not permitted to express opinions on sentence.

Forms of participation In order to facilitate the analysis of the substantive legal provisions, it is necessary to engage in a preliminary discussion of the various meanings that have been given to the term ‘victim participation’. Edwards distinguishes four possible forms that such participation may take. The first form is decision-making control, in terms of which criminal justice agencies would be obliged to ‘ascertain and apply the victim’s preference in the particular case’ (2004, p. 974). Due to its potential to undermine prosecutorial control of the proceedings, and to interfere with defendants’ due process rights (see below), this form is unlikely to be adopted in the UK. The second form, consultation, involves imposing obligations on criminal justice agencies to ascertain and consider victims’ views ‘about the appropriate course of action at a particular stage of the process’ without according victims the power to determine outcomes (Edwards, 2004, p. 975). Victim consultation is employed in certain pre-trial procedures, such as decisions to continue or discontinue prosecutions (see below). Edwards’ third and fourth forms of victim participation are information-provision and expression. The former refers to the need of criminal justice agencies ‘to receive information from or about the victim’, whereas the latter involves ‘the victim wanting to provide information or communicate feelings’ to such agencies (ibid, p. 976). Victim Personal Statements are commonly regarded as performing these two functions (see below). While the participatory forms to which Edwards alludes comprise accurate descriptions of the various functions or purposes of victim participation, these descriptions are not encapsulated in the law of criminal procedure. Given victims’ lack of formal legal status in the UK, this is not surprising. However, the rules of criminal procedure in several European jurisdictions permit victims to

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act as auxiliary prosecutors alongside the state prosecutor or as civil parties by joining their compensation claims to the criminal proceedings (adhesion). Victims who do so are granted the status of full parties to the proceedings (see below). Consequently, the European concept of victim participation unambiguously refers to the procedural rights that such victim parties are permitted to exercise. These procedural rights involve expression, consultation and the provision of information. However, they are not distinguished according to their function or purpose, but according to the extent to which they are active or passive. In the context of the German auxiliary prosecution procedure, for example, Niedling distinguishes between active procedural rights, such as the right to lead evidence, to request the recusal of a judge and the right, within limits, to appeal against a conviction, and passive rights, such as the right of access to the dossier, and the right to legal representation and legal aid (2005, pp. 79–80). Unlike passive rights, active rights involve the victim making a positive contribution to the proceedings. Viewed from the perspective of the UK, in which, at most, victims may be heard at the sentencing stage, all these rights, whether conceived in European terms as active or passive, involve the active participation of the victim. In the UK, for instance, to grant a victim the right to legal representation in the trial process has traditionally been considered an excessive degree of involvement that interferes with defendants’ due process rights. By comparison with the extensive procedural rights given to victims in European systems, the limited opportunities for victim participation in the UK may be regarded as passive. This chapter accordingly regards active participation as pertaining to the position of victims who are parties to the criminal proceedings with procedural rights, such as auxiliary prosecutors and civil parties. Passive participation refers to the more limited consultative or expressive involvement of victims in prosecutorial decisions, such as whether to continue or discontinue a prosecution, and in the sentencing stage, in the form of VPS or allocution (the making of oral statements). However, in view of recent reforms in the US and the UK, such as the recognition of lawyers for victims in certain cases, this active–passive distinction is becoming a question of degree rather than a fixed divide. Although common law jurisdictions have traditionally refused to allow such legal representation, it is becoming increasingly common in the US, and the UK is currently piloting a scheme involving lawyers for families of homicide victims at the sentencing stage (see below). In addition, victim statements of opinion on sentence, which are recognised in a few US states, likewise introduce active participation into what would otherwise be a passive Victim Impact Statement on the effects of the crime (see below). Nonetheless, a fundamental dichotomy continues to exist between the recognition of formal party status for victims in European jurisdictions and the absence of such party status in common law jurisdictions.

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Council of Europe instruments These different conceptions of victim participation have generated tensions in the Council of Europe between common law jurisdictions, such as the UK and Ireland, on the one hand, and civil law and Nordic jurisdictions, on the other. Although the Council of Europe’s initial statements on victims’ rights do not address this tension, the Framework Decision on the Standing of Victims in Criminal Proceedings (2001/220/JHA) reflects a compromise in which the choice of the form of participation is left to individual Member States. Recommendation No. R (85) 11 on the Position of the Victim in the Framework of Criminal Law and Procedure (1985) deals primarily with passive participation. For instance, article 12 provides that the court should receive ‘all relevant information concerning the injuries and losses suffered by the victim’ to enable it to consider the victim’s compensation needs and ‘any compensation or restitution by the offender’ in determining the sentence. However, it also recommends more active participation by victims in certain limited respects. Article 7 provides, for example, that victims must have the right to have decisions not to prosecute reviewed, or ‘to institute private proceedings’. The right to subject prosecutorial decisions to review may but does not necessarily involve active participation (see below). By contrast, the view has been adopted that the right to institute private prosecutions is an active participatory right (Niedling, 2005, p. 79). However, as private prosecutions require victims to finance their own involvement in the proceedings, and therefore occur rarely in practice, they are not considered in this chapter. The provisions of the Framework Decision concerning victim participation represent the culmination of protracted debate between Member States from common law jurisdictions and those from civil law and Nordic jurisdictions. Article 3 provides that ‘each Member State shall safeguard the possibility for victims to be heard during proceedings and to supply evidence’. However, subarticle 9 of the preamble emphasises that Member States do not have to treat victims ‘in a manner equivalent to that of a party to proceedings’. Although the Framework Decision requires victims to be heard, it accordingly leaves the decision whether to regard victims as parties or as mere witnesses to individual Member States. Article 6 deals with non-legal advice and legal aid. It provides that Member States must grant victims access to non-legal advice regarding ‘their role in the proceedings’, which must be gratuitous, if necessary, as well as legal aid, in appropriate cases, ‘when it is possible for them to have the status of parties to criminal proceedings’. The restriction of legal aid to instances where victims have the status of parties was included in consequence of the refusal of the UK and Ireland to accept the provisions of the original draft of article 6. This draft provided that: Irrespective of the possibility of victims participating in procedure as a

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witness or a party, Member States shall ensure an opportunity for victims to participate as such, in accordance with the provisions of this Framework Decision. Member States shall ensure that all victims, regardless of their means, have access to legal advice, provided free of charge if need be. (Rock, 2004, p. 517) The imposition of a blanket duty to provide legal advice was unacceptable to the UK and Ireland (ibid, p. 517) and the draft was accordingly amended to ensure unanimity. Had the common law jurisdictions not taken issue with this draft, legal advice for all victims, albeit not necessarily party status, would have become the norm throughout Europe. This negotiated compromise has resulted in provisions concerning victim participation that are hardly models of clarity, but that have the consequence that either the active models of participation, such as auxiliary prosecution and adhesion, or the more limited passive models, such as Victim Personal Statements and allocution, will comply with the Framework Decision.

Victim participation in the UK The English criminal process regards victims as mere witnesses for the prosecution, according them no active participation rights. Although victims have recently been given limited scope to participate passively at the pre-trial and sentencing stages, they are not permitted to participate at all during the trial. This section discusses the forms of victim participation in the pre-trial process and at sentencing. Decisions to prosecute In view of the fact that s 32(5)(b) of the Domestic Violence, Crime and Victims Act 2004 precludes the imposition of duties on the CPS in regard to the discharge of a function involving the exercise of discretion (see Chapter 9), the Code of Practice for Victims of Crime 2005 does not apply to decisions whether to prosecute, which involve the exercise of discretion. The CPS exercises its discretion to make such decisions in accordance with the evidential sufficiency and public interest tests contained in the Code for Crown Prosecutors (CPS, 2004, the Prosecutors’ Code). These tests require, first, that there must be sufficient evidence for a reasonable prospect of conviction, and second, that a prosecution must be in the public interest (para 5.1). However, the Prosecutors’ Code does state that, in considering whether a prosecution is in the public interest, the CPS must ‘take into account the consequences for the victim of whether or not to prosecute, and any views expressed by the victim or the victim’s family’ (para 5.12). The Prosecutors’ Pledge (CPS, undated) echoes these sentiments. The fact that the CPS must consider the effect on victims of its prosecutorial decisions does not necessarily

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involve victim participation, as the CPS may comply with this requirement merely by considering the contents of the police file without consulting the victim. The duty to take victims’ views into account is more open to the involvement of victims, although such involvement is limited as the duty is to consider any views expressed by the victim or his/her family, not to take steps to ascertain such views if they are not spontaneously forthcoming. While CPS decisions not to prosecute are subject to judicial review (see Chapter 7), the courts have held that their powers to review such decisions are limited. In R v The Director of Public Prosecutions ex parte C.1 the court held that the fact that the CPS did not consult a victim about a decision not to prosecute does not amount to a procedural impropriety, and thus that the court cannot intervene in the CPS’s decision (para 31). The scope for victim participation in decisions whether or not to prosecute is accordingly negligible. Decisions to accept pleas Victims also have no right to participate in prosecutorial decisions to accept a plea of guilty in exchange for a sentence discount or a plea of guilty to a less serious charge. Plea-bargaining negotiations are regarded as the province of the prosecution and defence. Furthermore, the Victims’ Code does not apply to plea-bargaining as it involves the exercise of discretion on the part of the CPS (see above). However, the Prosecutors’ Code provides that, in deciding whether the acceptance of a plea is in the public interest, the CPS must ‘ensure that the interests of the victim and, where possible, any views expressed by the victim or victim’s family, are taken into account’ (para 10.2). It nonetheless emphasises that the ultimate decision is that of the CPS. The Prosecutors’ Pledge (CPS, undated) contains an undertaking on the part of the CPS to ascertain the views of the victim or his/her family by speaking to them, where practical, when deciding whether or not to accept a plea. Likewise, the Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise (Attorney General, 2005) require the CPS to seek victims’ views in determining whether to accept pleas. The guidelines state that such views are significant as they ‘may assist in informing the prosecutor’s decision as to whether it is the public interest, as defined by the Code for Crown Prosecutors, to accept or reject the plea’ (para B.3). The CPS has emphasised the importance of complying with the Attorney General’s Guidelines (CPS, 2006). Although these policy documents require the CPS to ascertain victims’ views, the extent to which victims are truly able to contribute to plea decisions remains negligible. They are unable to participate in plea negotiations and, contrary to the position in the US (see below), they have no right to participate in plea

1 [2000] WL 281275.

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hearings. This lack of participation causes secondary victimisation as victims may feel excluded as well as dissatisfied with a conviction or sentence that does not constitute an accurate reflection of the impact of the crime upon them. Ashworth and Redmayne have argued that guilty pleas are generally to the advantage of victims because they are spared the ordeal of giving evidence (2005, p. 283). However, they concede that this view may obscure the more mixed responses of victims to the discount. They point out that research shows that rape victims would prefer to give evidence to ensure that the defendant does not receive a sentence discount on the basis of a guilty plea (ibid, p. 283). Victim Personal Statements Amidst great controversy, a national scheme permitting victims to make VPS indicating the impact of the crime upon them came into effect in October 2001 (Walklate, 2007, p. 116). This section discusses the provisions of the VPS scheme and engages in an analysis of the arguments raised by its supporters as well as its opponents. VPS scheme A VPS comprises a written statement containing details of the physical, emotional, psychological and financial impact of the crime on the victim. It may be made by any person who has been the subject of a criminal act by another person. However, such criminal act must constitute an offence that may be prosecuted by the CPS. Eligible victims include ‘bereaved relatives or partners in cases of homicide or serious sexual or physical assault [and] parents, where the primary victim is a child’. Sole proprietors or small business partners are also eligible, but large companies and businesses are ineligible (Rock, 2004, p. 211). The VPS scheme comprises a two-stage process. The first statement is made to the police at the same time as the witness statement. Rock states that this initial statement concerns ‘matters such as bail, compensation, problems of vulnerability, medical and psychological damage, and the victim’s willingness to take part in restorative justice’ (ibid, p. 210). A second statement may be made at a later stage in the criminal process once any long-term effects of the offence have become apparent (ibid, p. 210). The approach that must be adopted by courts to a VPS was formulated by the Court of Appeal in Practice Direction (Victim Personal Statements).2 Lord Woolf stated that the court must consider and take into account the VPS and any supporting evidence before it imposes the sentence, but that it must not make unsubstantiated assumptions about the crime’s impact on the victim. He emphasised that, although the court may, where appropriate, take into account

2 [2002] 1 Cr App R 8.

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the consequences to the victim when passing sentence, the victim’s opinions on sentence are irrelevant (para 3). Prior to the Court of Appeal’s unambiguous rejection of the relevance of victims’ opinions on sentence, courts have, on occasion, taken cognisance of such views (Edwards, 2002). In R v Perks,3 the Court of Appeal held that the case law recognised two exceptions to the general rule that victims’ opinions on sentence must not be taken into account. First, the sentence may be moderated to some extent to reflect the fact that the sentence imposed on the offender is aggravating the victim’s distress. Second, the sentence may be reduced if the fact that the victim has forgiven the offender or is unwilling to press charges indicates ‘that his or her psychological or mental suffering must be very much less than would normally be the case’ (para 15). In addition to being at odds with the Court of Appeal’s subsequent Practice Direction, this approach is contrary to the position adopted in McCourt v UK,4 where the European Commission approved the attitude of the Home Office that victims’ families lack the ‘requisite impartiality for involvement in the sentencing procedures’ (para 1). By parity of reasoning, this also applies to direct victims. It is submitted that the exclusion of victims’ opinions on sentence is correct. Although active victim participation in the pre-trial and trial processes is desirable in order to empower victims and prevent secondary victimisation, this does not necessitate the inclusion of victims’ opinions on sentence. The consideration of such opinions gives credence to a law and order ideology that not only harnesses ‘victims in the service of severity’ (Ashworth, 2000, p. 186) but also represents an unjustified incursion into defendants’ rights (see below). Opposing views on VPS The introduction of VPS has been very controversial. Proponents of such statements have pointed to their benefits to victims as well as to the criminal justice system. Therapeutic jurisprudence, for instance, emphasises the importance of victim input in contributing to the catharsis and closure deemed necessary to promote the healing of victims (Erez, 2000, p. 167; Erez, 1999, p. 552). Procedural justice theory, however, takes the view that providing victims with an opportunity to ‘tell their stories’ accords them ‘process control’ and concomitantly increases their satisfaction with the criminal process, regardless of the eventual outcome (Erez, 2000, p. 167). The view has also been expressed that VPS legitimate victims as parties to criminal proceedings (Goodey, 2005, p. 166). However, this view is not consonant with the legal status of victims in the UK. Unlike their European counterparts, who may act as auxiliary

3 [2001] 1 Cr App R (S) 19. 4 (1993) 15 EHRR CD 110.

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prosecutors or civil parties (see below), victims in the UK are regarded as mere witnesses for the prosecution, regardless of their ability to make VPS. Apart from such victim-centred considerations, VPS are also alleged to benefit the criminal justice system. The information they contain is said to assist criminal justice agencies to understand the impact of the crime on the victim and thus to influence their decision making (Goodey, 2005, p. 166). In addition, consideration of harm to victims promotes ‘accurate or effective sentencing outcomes’ (Edwards, 2001, p. 41). On the basis of research into the use of Victim Impact Statements in South Australia, Erez and Rogers concluded that, in cases where such statements have affected the sentences imposed, they have contributed to sentence accuracy and proportionality rather than to increased punitiveness (1999, p. 235). The absence of increases in sentence on account of VPS has been ascribed to the tendency of victims ‘to understate, rather than overstate’ the effects of the crime (Goodey, 2005, p. 169; Erez, 1999, p. 549). Opponents of VPS have focused on their incompatibility with the traditional aims of sentencing and, consequently, with defendants’ rights, as well as on their limited practical value for victims. Ashworth has expressed the concern that the use of VPS may lead to sentences being imposed on the basis of harm that was unforeseen by the offender. In addition, he has questioned whether it is ‘right that a particular offender should receive a more severe sentence because his victim suffered abnormally serious after-effects, or that another offender should receive a much lower sentence because his victim was counselled successfully and apparently recovered quickly’ (1993, pp. 505–6). VPS may make the sentencing process more arbitrary than it already is and may accordingly infringe the defendant’s right to a fair trial (Walkate, 2007, p. 117). Opponents also raise concerns that VPS do not, in fact, inure to the benefit of victims. Ashworth has argued that research into the English pilot projects using VPS demonstrates that many victims who made such statements ‘found that their hopes about the influence of their statement were dashed’ because it had a negligible effect on the charge or the sentence (2000, p. 198). Regardless of their merits or shortcomings, recent research has indicated that VPS have little effect in practice. Tapley has shown that victims are not regularly or consistently given the opportunity to make VPS, despite their entitlement to do so (Walklate, 2007, p. 120). Erez has ascribed this lack of practical effect to resistance from legal professionals (2000, p. 178). However, Sanders has argued that the use of VPS in traditional common law systems is an inappropriate means of achieving victim participation (2001, p. 457). It is thus not surprising that they have little practical effect. Appending victims’ input to the sentencing stage rather than providing for their participation at the pre-trial and trial stages facilitates the expression of views that do not empower victims procedurally or prevent secondary victimisation (see below). It is accordingly submitted that victim participation may be achieved satisfactorily only by introducing European procedures such as auxiliary prosecution (see below). However, as Erez has pointed out, in adversarial systems as currently conceived,

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Victim Impact Statements constitute the only way in which ‘victims can articulate their suffering, identify their concerns, and express the way their lives have been affected by the crime’ (2004, p. 499). Family Impact Statements and lawyers for families of homicide victims The scope for victims to participate in the criminal process was extended in April 2006 by the introduction of pilot schemes in terms of which the families of homicide victims may make Family Impact Statements and may be legally represented at the sentencing stage (Walklate, 2007, p. 115). At the time of writing the pilot schemes are operating in the Central Criminal Court in London, as well as in the Birmingham, Cardiff, Manchester and Winchester Crown Courts (A Protocol issued by the President of the Queen’s Bench Division, 2006). The purpose of the FIS is to enable the family to explain the impact of the homicide to the court at the sentencing stage. FIS accordingly function in a similar way to VPS. However, they differ insofar as the family may choose whether to make the statement orally or in writing and may be represented by a lawyer (ibid). The FIS, which is initially made in writing with the assistance of a police Family Liaison Officer, is considered by the court at the Plea and Case Management Hearing (PCMH), where the chosen family member will be required to indicate whether the statement will be made orally or in writing at the sentencing stage, and whether s/he will be assisted by a lawyer or a ‘lay friend’ (ibid). If the family member chooses to be represented by a lawyer ‘paid for out of public funds’, such a lawyer will be chosen immediately after the PCMH to enable him/her to prepare adequately (ibid). The government has indicated that, in order to ensure that the legal representative is able to perform his/her functions properly, s/he must be provided with relevant information, such as ‘copies of applications made to the court by the prosecution and defence e.g. for advance sentence indication, reporting restrictions, special measures, details of dates of pre-trial hearings and the proposed trial date’ (Criminal Justice System, 2005a, para 71). If the family member has chosen to make an oral statement at the sentencing stage, the procedure applicable to evidence-in-chief is adopted. Questions by the legal representative are, however, restricted to the impact of the homicide on the family. In order to ensure that the defendant’s right to a fair trial is respected, s/he has the opportunity to cross-examine the family member (A Protocol issued by the President of the Queen’s Bench Division, 2006). These pilot projects, which introduce American-style victim allocution and legal representation at the sentencing stage for the first time in the UK, will undoubtedly be controversial. The government has indicated that it may be open to the possibility of extending this scheme to victims of other offences in addition to homicide (Criminal Justice System, 2005a, para 40). Whether this

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will occur, and whether the scheme for families of homicide victims will be made permanently and nationally available, depends on the success of the pilot projects.

Victim participation in the US In view of the UK’s increasing willingness to adopt American victimparticipation measures, it is necessary to assess the current state of American law in this regard. This section considers the right of victims in the US to participate in the pre-trial and sentencing stages. Although it focuses on the relevant federal provisions, it also briefly refers to the legal position in a few of the states. The federal Crime Victims’ Rights Act (see Chapter 7) enshrines the right of victims to participate in the criminal justice process. It provides, in particular, that victims have ‘[t]he right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding’. Most states also accord victims the right to be heard at such stages of the criminal process. Decisions to prosecute Despite the far-reaching provisions of the CVRA, the discretion of the prosecutor to decide whether to prosecute is subject to few formal constraints. The American commitment to prosecutorial independence means that, like the English CPS, the American prosecutor is the ultimate arbiter of decisions to prosecute (Frase and Weigend, 1995, p. 337). However, victims do have the right to be consulted by the prosecutor prior to the exercise of his/her discretion to prosecute (Gershman, 2005, p. 574). In addition, a few states permit victims to institute proceedings for judicial review of prosecutorial decisions not to prosecute, although the most commonly available procedure is to challenge such decisions in front of a grand jury. Victims accordingly ‘have significant informal influence in the charging process’ (Beloof, 1999, p. 317). Decisions to accept pleas As has been indicated above, the CVRA grants victims the right to be heard at plea hearings in federal law. Victims may enforce this right by a writ of mandamus (Beloof, 2005, p. 343). Several states also give victims participatory rights at the plea stage. Verdun-Jones and Tijerino state that in at least 22 states, prosecutors are required to consult victims or obtain their views concerning plea agreements (2005, p. 198). They point out that the Code of Virginia (paras 19.2–11.01), for instance, provides that a plea agreement may not be accepted by the trial court unless ‘the prosecutor has complied with the requirement of consultation with the victim’ (ibid, p. 198).

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In addition, several states, such as Minnesota, Rhode Island and Arizona, grant victims the right to be heard at plea hearings (Cassell, 2005, pp. 866–7). Verdun-Jones and Tijerino indicate, for instance, that the Arizona Criminal Code (para 13–4423) gives victims ‘the right to be present at any hearing concerning a plea agreement and to fully express their views to the court before the judge makes a decision whether or not to accept it’ (2005, p. 199). However, neither federal nor state law permits victims to veto pleas as such a right of veto would unjustifiably limit defendants’ due process rights. Victims are therefore given expressive and consultative forms of participation but rightly do not have decision-making control. Victim participation in sentencing The CVRA also grants victims the right to be ‘reasonably heard’ at the sentencing stage. This right clearly applies to written VIS outlining the effect of the crime on the victim, as such statements are an unremarkable feature of American law, having been recognised in all US states for several years. However, it was initially uncertain whether the provisions of the CVRA include the right to allocute, which has been granted by some states. In the recent decision of Kenna v District Court,5 the Ninth Circuit interpreted the right to be ‘reasonably heard’ broadly. It rejected the contention that the victim may not speak at the sentencing stage and that the right to be ‘reasonably heard’ is fulfilled by the ability to make a written statement. It held that, defined broadly, the term ‘heard’ gives victims ‘a right to provide oral and written impact statements’ (Butler, 2006, p. 23). The court described the right to make oral statements ‘as a right to personally “allocute”, much like that of the defendant’ (Baron-Evans, 2006, p. 49). In order to give effect to this right, it remitted the matter to the trial court, directing it not to infringe the defendant’s constitutional rights, but to take cognisance of the fact that compliance with the victim’s right to allocute necessitated the vacation of the sentence and a fresh hearing on sentence (ibid, p. 54). In United States v Degenhardt,6 the court likewise concluded that the CVRA grants victims the ‘right to personally speak at sentencing’ (Beloof, 2006, p. 37). The Court in Kenna founded its decision on the intent of Congress to ensure that ‘victims be full participants in the criminal justice system’ (Butler, 2006, p. 23). Beloof has accordingly argued that victims are now independent participants at the sentencing stage, ‘requiring no permission from the court and no request from the parties’ (Beloof, 2006, p. 41). However, it is important to distinguish accurately between the concepts of ‘participant’ and ‘party’ in American law. Victims are not parties but participants when they exercise their

5 435 F 3d 1011 (9th Cir 2006), cited in Butler, 2006, p. 26. 6 405 F Supp. 2d 1341 (D Utah 2005), cited in Beloof, 2006, p. 42.

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rights to participate in the criminal process. They are parties only when they enforce rights that have been denied to them in the criminal process by way of action outside the confines of the trial itself (Beloof, 2005, p. 272). Although they participate much more extensively in American than in English criminal proceedings, they are nonetheless not constituted full parties to the criminal proceedings, as is the case in auxiliary prosecution and adhesion in European jurisdictions. The decision in Kenna clarified the federal law concerning written and oral VIS and will no doubt encourage those states that do not yet permit victim allocution to do so. However, it did not address the separate question as to whether victims also have the right to give opinions on the sentence itself. While the majority of states do not permit so-called Victim Statements of Opinion (VSO), a minority of states have recognised them (Beloof, 1999, p. 324). In In re Kenna (Kenna II),7 the victim’s counsel had argued before the district court that the CVRA grants victims the right of access to a pre-sentence report in order to enable them to recommend a sentence (Baron-Evans, 2006, p. 51). Counsel relied on a statement made by a senator in Congress to the effect that ‘victim impact’ includes not only the effect of the crime on the victim but also ‘sentencing recommendations’ (ibid, p. 51). The Ninth Circuit affirmed the district court’s decision that the CVRA did not grant victims the right to obtain the pre-sentence report, implicitly holding that they do not have the right to make sentencing recommendations (ibid, p. 51). This approach, albeit unfortunately not expressly stated, constitutes a welcome counterpoint to the arguments of scholars such as Beloof and Cassell that victims have an interest in punishment, justifying the inclusion of their opinions on sentence (see Beloof, 2005, p. 311; Cassell, 2005, pp. 893–4). The admission of such opinions opens the door to individual vengeance that undermines defendants’ due process rights, and does not empower victims procedurally or protect them from secondary victimisation. It is to be hoped that this refusal to permit VSOs at federal level will dissuade those states that have not already recognised them to refrain from doing so, and encourage those that have adopted them to reconsider their position. Victims’ lawyers Although it would appear logical from a traditional common law perspective to assume that the American commitment to adversarialism would preclude it from permitting victims’ lawyers at any stage of the criminal process, there is clear authority in both federal and state law for the use of such lawyers. The CVRA does not explicitly grant victims the right to legal representation. However, in the case of material conflicts of interest between prosecutors and

7 453 F 3d 1136 (9th Cir 2006), cited in Baron-Evans, 2006, p. 55.

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victims, prosecutors are required to advise victims that they may seek legal advice (Cassell, 2005, p. 916). The CVRA therefore acknowledges the permissibility of legal assistance for victims. Butler has argued that the authority for courts to appoint counsel for victims ‘is implicit in the CVRA provisions regarding the court’s obligation to ensure that victims’ rights are afforded’. In support of his argument, he refers to the decision in United States v Stamper 8 in which a ‘federal court appointed counsel to represent a victim’ (Butler, 2006, p. 24). In practice, however, courts rarely appoint counsel for victims (Beloof, 1999, p. 321). Victims may nonetheless employ privately funded lawyers in federal court as well as in most state courts. Such lawyers are subject to the prosecutor’s control and participate in the trial with his/her permission (Beloof, 1999, p. 320; O’Hara, 2005, p. 236). In terms of the Tennessee Code (para 8–7–401(a)), for example, victims or their families may use private lawyers who act with the district attorney general or his/her deputies in prosecuting cases. The degree to which such private lawyers may participate is at the attorney general’s discretion (Gershman, 2005, p. 564). In Hughes v Bowers,9 the federal district court held that the presence of such lawyers is not in and of itself constitutionally improper (ibid, p. 567). It accordingly seems that, at least as regards the use of victims’ lawyers, the US is more willing to adopt a position that has a greater affinity with European concepts of victim participation than its common law counterpart in the UK, despite their shared commitment to adversarialism. However, unlike the US, victims’ lawyers in European jurisdictions are not fettered by a requirement that they be subject to prosecutorial control.

European models of victim participation Victims in civil law and Nordic jurisdictions, albeit prosecution witnesses, may also be full parties to the criminal proceedings with procedural rights analogous to those of the prosecution and defence. This section assesses the models of victim participation adopted in these jurisdictions. Although the focus is on trial proceedings, victim participation in the pre-trial process is considered briefly. There is a certain amount of uniformity in the models of participation in most European jurisdictions. The use of victims’ lawyers and auxiliary prosecution in German law (an inquisitorial system) and Swedish law (a mixed system with an adversarial trial process) is analysed in order to demonstrate that these models are compatible with both inquisitorial and adversarial trial procedures. In addition, the adhesion procedure in Dutch law, which also has an adversarial trial process (Brienen and Hoegen, 2000b, p. 647), is discussed.

8 766 F Supp 1396 (DNC 1991), cited in Butler, 2006, p. 28. 9 711 F Supp 1574 (ND Ga 1989), cited in Gershman, 2005, p. 567.

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Party and non-party victims However, in order to facilitate the analysis, it is necessary to explain the distinction in European jurisdictions between victims who are and those who are not parties to the proceedings – a distinction that is unknown in common law jurisdictions. German law distinguishes between a victim in the broad sense (Opfer) and an injured person or party (Verletzte). The term Verletzte, and not the term Opfer, is employed in the context of the procedural rights of victims. However, the term Verletzte is not defined in the Strafprozeßordnung (Code of Criminal Procedure, ‘St.PO’). Its meaning is determined in accordance with the context of the section in which it appears (Brienen and Hoegen, 2000b, p. 362). A Verletzte who is an injured person (a prosecution witness) is not a party to the proceedings, but nonetheless has the right to a lawyer (s 406f(1) St.PO). However, a Verletzte who is an injured party is a full party to the proceedings with active participatory rights, including the right to a lawyer. Such an injured party is one who acts as an auxiliary prosecutor or who employs the adhesion procedure, in terms of which his/her civil claim for compensation is joined to the criminal proceedings. Swedish law adopts a similar distinction. In common parlance, the term brottsoffer means ‘victim of crime’. However, this term has no legal meaning. The relevant legal term is målsägande, which is defined in s 8 of the Swedish Rättegångsbalk (Code of Judicial Procedure, ‘CJP’) as ‘the person against whom the offence was committed or who was affronted or harmed by it’. It refers either to an injured person or an injured party in the abovementioned sense (Brienen and Hoegen, 2000b, p. 889). Dutch law employs a slightly simpler distinction between a victim in the broad sense (slachtoffer) who is merely a witness for the prosecution and an injured party (benadeelde partij) who employs the adhesion procedure and accordingly has active participatory rights (Brienen and Hoegen, 2000b, p. 668). Victim participation in the pre-trial stage The pre-trial procedure in Germany, Sweden and the Netherlands is inquisitorial in nature. As such, the investigation, which is conducted by the police and the prosecution, is overseen by an examining magistrate, who has the ultimate decision concerning the readiness of the dossier for trial. The judiciary is thus much more involved in the pre-trial process than is the position in common law jurisdictions. However, despite their shared inquisitorial procedure, the degree of pre-trial participation by victims varies across these jurisdictions. German law affords victims a significant degree of participation in the pre-trial process. Injured persons as well as injured parties have the right to have their pre-trial participatory rights exercised on their behalf by a lawyer (see below). It is nonetheless

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currently uncertain whether this right is applicable to questioning by the police (Walther, 2006, p. 114). The injured person/party is in a fairly strong position as regards decisions to prosecute. In terms of s 171 St.PO, prosecutors who decline to prosecute or who stop the prosecution have a duty to inform the injured person/party of the reasons for their decision. If s/he is dissatisfied with these reasons, s/he has the right to embark upon the following three-stage review procedure:

• • •

After receiving the reasons for the prosecutor’s decision, the injured person/ party may approach the superior prosecutor with objections to these reasons. If the superior prosecutor declines to overturn the initial decision not to prosecute or to stop a prosecution, the injured person/party may apply for judicial review. If the court, on review, makes a decision that is unfavourable to the injured person/party, s/he has a right of appeal against this decision.

However, the scope of the right to appeal is limited to instances where the prosecutor’s decision was based on a lack of ‘substantial suspicion,’ namely that there was no likelihood of a conviction because of ‘lack of evidence or legal obstacles’ (Walther, 2006, p. 114). The right is consequently not exercised very frequently in practice (Frase and Weigend, 1995, p. 350). Victims also have a strong pre-trial right of discovery which entitles them ‘to see the prosecutor’s file and to inspect the evidence’ (Akteneinsicht) (Walther, 2006, p. 115; s 406e(1) St.PO). Although this right is available to injured persons as well as injured parties who are acting as auxiliary prosecutors, the former must provide a statement of good cause in order to exercise the right, whereas it automatically accrues to the latter (Walther, 2006, p. 115). Auxiliary prosecutors are accordingly granted extensive participation rights in the pre-trial process. Swedish law accords victims less pre-trial participation rights than its German counterpart. The views of the injured person/party must be considered by the prosecution in deciding whether to waive the prosecution in terms of s 7 CJP. Such consideration requires the prosecution to weigh the injured person/party’s interest in prosecution against the question of whether prosecution is necessary in the public interest. The injured person/party must be notified of decisions not to continue the prosecution and must be provided with a clear explanation of the reasons for such decisions (Wergens, 2002, p. 274). S/he has the right to appeal against the district or regional prosecutor’s decisions to ‘the regional prosecutor or the Attorney General’ respectively (Svensson, 1995, p. 34). Unlike German law, there is no right of appeal to a court. The injured person/party also has no right to pre-trial discovery of the contents of the investigation (Wergens, 2002, p. 275). However, s/he does have the right to be legally represented at the pre-trial stage, including when being ‘heard by the police or prosecutor’ (Svensson, 1995, p. 38; see below).

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In terms of Dutch law, pre-trial participatory rights are accorded only to the injured party who employs the adhesion proceedings. In view of the fact that these proceedings may be initiated at either the pre-trial or trial stage, the injured party’s pre-trial rights are discussed in the assessment of adhesion below. Non-party victims’ lawyers In terms of German law, injured persons (witnesses for the prosecution) have the right to be represented by lawyers who are entitled to be present during their examination by the court and the prosecution, to object to questions on their behalf and to apply for the exclusion of the public in appropriate circumstances (ss 406f(1)–(2) St.PO). However, such lawyers are not state-funded. The Swedish Lag om Målsägandebiträde (Act Concerning Counsel for the Injured Person/Party) provides for the appointment of a lawyer for both injured persons and injured parties in the case of serious offences, such as sexual offences, murder and kidnapping (ss 1(1)–(2)), as well as in the case of other offences punishable by imprisonment if, in light of the injured person/party’s personal relationship and other circumstances, it may be assumed that s/he is in particular need of such counsel (s 1(3)). The lawyer is both appointed and funded by the state (Bacik et al., 1998, p. 288) and is under an obligation to protect the interests of the injured person/party in the case and to provide him/ her with support and assistance (s 3). As regards the injured person (who is a mere prosecution witness), the lawyer’s role is restricted to being present during the trial (Wergens, 2002, p. 277). It has, however, been proposed that the injured person’s lawyer should be permitted to question the defendant, witnesses and experts (Temkin, 2002, p. 293). Although lawyers for prosecution witnesses may appear extraordinary to an English lawyer who is committed to the adversarial process, the use of such lawyers in American law, albeit subject to prosecutorial control, indicates that legal representation for victim witnesses is not necessarily incompatible with adversarial principles. Likewise, victims’ lawyers have not caused procedural irregularities in Swedish law, which also has an adversarial trial process (Herrmann, 1996, p. 129). Victim parties This section assesses the active procedural rights that are accorded to injured parties who act as auxiliary prosecutors in German and Swedish law or as civil parties in adhesion proceedings in Dutch law. Auxiliary prosecution In addition to Germany and Sweden, several other European jurisdictions, such as Austria, Denmark, Portugal (Brienen and Hoegen, 2000b, pp. 80, 218 and 778)

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and Poland (Doak, 2005, p. 309), recognise a tripartite procedure in terms of which victims of serious offences are permitted to act as auxiliary prosecutors, alongside the state prosecutor, in the defendant’s trial. The fact that not only Sweden but also Denmark and Portugal have adversarial trials (Herrmann, 1996, p. 129) indicates that the auxiliary prosecution procedure is not a singularly inquisitorial phenomenon. In order to illustrate that this tripartite procedure is consonant with both inquisitorial and adversarial proceedings, this section highlights the similarities between the relevant German and Swedish provisions. Section 395(1) of the German St.PO provides that victims of serious offences that ‘have a very personal impact on the victim (or the victim’s family), including murder, assault, kidnapping, and sexual assault’ (Pizzi and Perron, 1996, pp. 54–5) may participate as an auxiliary prosecutor (Nebenklager) in the criminal prosecution of the defendant. Such victims, who are simultaneously also prosecution witnesses, are permitted to participate in order to give credence to their interest to gain satisfaction for the harm they have suffered in consequence of the offence (Pfeiffer, 1993, p. 1603). In terms of s 396(1) St.PO, the victim may apply for permission to participate as an auxiliary prosecutor by way of a declaration of joinder handed to the court. This declaration becomes effective only upon preferment of public charges. Victims may accordingly act as auxiliary prosecutors only if the state institutes criminal proceedings. The application for participation as an auxiliary prosecutor is decided by the court after having heard the prosecutor. The court’s decision is not subject to challenge (s 396(2) St.PO). Once s/he has been given permission to participate, the auxiliary prosecutor becomes a party to the proceedings with active participatory rights. As regards the entitlement to a court-appointed lawyer, s 397a(1) St.PO distinguishes between Verbrechen (serious offences) and Vergehen (non-serious offences). This distinction is similar to the American distinction between felonies and misdemeanours (Brienen and Hoegen, 2000b, p. 355). If the conduct in question constitutes a serious offence, such as sexual assault (Frey, undated, p. 63), the auxiliary prosecutor is entitled to a court-appointed lawyer in respect of all the offences to which the auxiliary prosecution procedure applies. However, if the conduct constitutes a non-serious offence, s/he is entitled to such a lawyer only if s/he is younger than 16 or unable to look after his/her own interests properly. The costs of the lawyer are borne by the state, although, should the defendant be convicted, s/he will be ordered to pay these costs (Niedling, 2005, pp. 103–4). Section 397a(2) provides that, in circumstances not covered by s 397a(1), the auxiliary prosecutor is nonetheless entitled to legal aid if s/he cannot afford a lawyer, provided that the matter deals with complex facts or law or s/he is unable to look after his/her own interests properly or cannot be expected to do so. The right to be represented by a lawyer applies even if the victim who is entitled to join the proceedings as an auxiliary prosecutor does not in fact do so (s 406g(1) St.PO).

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The auxiliary prosecutor has several statutorily entrenched rights. In order to understand the significance of these rights, it is necessary to explain German trial procedure briefly. The procedure is inquisitorial, premised upon a search for the truth, and is judge-centred rather than party-centred (Bacik et al., 1998, p. 234). In addition, evidence is adduced in narrative form (Walther, 2006, p. 116). The defendant’s testimony is heard first, followed by that of the victim (Pizzi and Perron, 1996, p. 46) and the witnesses. Although the judge calls the witnesses, the evidence of witnesses may also be requested by counsel for the three parties. The parties and the witnesses are first questioned by the trial judge and the lay judges. Questions may thereafter be asked by counsel for the three parties (ibid, p. 47). The defendant is not regarded as a witness and thus has an untrammelled right to silence, which includes the right to refuse to answer questions put to him (ibid, p. 62). In view of the fact that the judge is in charge of questioning, the adversarial distinction between the cases for the prosecution and the defence, and between examination-in-chief and cross-examination, is unknown (ibid, p. 55). Despite the fact that s 239(1) St.PO permits crossexamination if it is jointly requested by the prosecution and the defence, such examination is rarely used as ‘aggressive partisan “distortions” of a witness’s recollection are seen as irreconcilable with the overall stress on inquisitorial methods of finding the truth’ (Frase and Weigend, 1995, pp. 357–8). Questioning is thus aimed at the elucidation of the evidence rather than the discrediting of the witness. In this procedural context, the auxiliary prosecutor has active procedural rights that are similar to those of the prosecution and the defence. Section 397(1) St.PO grants auxiliary prosecutors the following rights:

• • • • • • •

to be present for the duration of the trial, even though s/he also testifies as a witness for the prosecution; to request the recusal of a judge; to challenge an expert witness; to object to orders made by the judge; to object to questions; to apply for evidence to be given; and to make statements.

In addition, in certain circumstances, ‘if the purposes either of truth finding or of protection of witnesses are imperiled’, the defendant may be removed from the courtroom (Walther, 2006, p. 116). The auxiliary prosecutor may request such removal for the duration of his/her testimony (Brienen and Hoegen, 2000b, p. 381). The auxiliary prosecutor may also leave the courtroom during the proceedings if they are too traumatic, provided that his/her lawyer remains. Finally, the auxiliary prosecutor may present a closing argument in the same way as the prosecution and the defence (Frey, undated, p. 62). Although the

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auxiliary prosecutor may request a particular sentence, s/he is not permitted any dispositive involvement as ‘questions of sentencing are considered to lie in the realm of professional prosecutors and judges’ (Walther, 2006, p. 117). The rights of the auxiliary prosecutor do not terminate upon the conclusion of the trial proceedings. In terms of s 401(1) St.PO, s/he has the right to an appellate remedy independently of the prosecution. However, this right of appeal is limited by two considerations. First, the auxiliary prosecutor may not appeal against the sentence. Second, s/he may not appeal in order that the defendant be convicted of an offence in respect of which the auxiliary prosecution procedure does not apply (s 400(1) St.PO). Effectively, therefore, s/he may appeal only against the merits of a decision regarding an offence for which auxiliary prosecution is permissible. In general, the auxiliary prosecutor’s lawyer has the same rights in respect of representation as the prosecutor and defence counsel, and may thus exercise the abovementioned rights on his/her behalf (Bacik et al., 1998, pp. 237–8; s 406f(2), s 406g(2) St.PO). The Swedish provisions for auxiliary prosecution are very similar to the German procedure. Section 8 CJP provides that ‘when a prosecutor has instituted a prosecution, the [injured party] may support the prosecution’. Such an injured party has active procedural rights analogous to those of the prosecution and defence (Brienen and Hoegen, 2000b, p. 890). S/he also has the right to be represented by a state-funded lawyer. However, Swedish auxiliary prosecution operates within the context of an adversarial trial procedure that differs from its German counterpart. Once the charge has been read and the defendant has pleaded, the presentation of oral testimony begins. Unlike the position in common law jurisdictions, the defendant as well as the witnesses, including the victim who acts as auxiliary prosecutor, give narrative evidence (Herrmann, 1996, p. 144; Macphail, 2002). The victim’s evidence is led first, followed by that of the defendant and finally by that of the witnesses. The victim and defendant do not have to give evidence under oath. After the victim has given evidence, the prosecutor, victims’ lawyer, defence counsel and judge question him/her. A similar questioning sequence is adopted after the defendant has testified, except that defence counsel questions the defendant before the victims’ lawyer does so. The witnesses are first questioned by the party who has called them and thereafter by counsel for the other parties and the judge (Svensson, 1995, p. 26). Although these questions take the form of cross-examination, unlike common law jurisdictions, they are not asked aggressively (Wergens, 2002, p. 259). It is the judge’s duty to ensure that the victim is not treated in an unsuitable manner or subjected to irrelevant questions (ibid, p. 279). Once the court has decided that no further questioning is necessary, the prosecutor and counsel present arguments. Thereafter the court retires to consider its verdict (Svensson, 1995, p. 26). Within this procedural context, the lawyer for the auxiliary prosecutor is entitled to exercise the following rights:

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to be present for the duration of the trial; to speak on behalf of the injured party; to object to questions asked of the injured party by the prosecution and defence; to cross-examine the defendant; to request that witnesses be called on behalf of the injured party; and to address the court on the defendant’s guilt or innocence and on the appropriate sentence (Bacik et al., 1998, pp. 288–9).

In addition, the lawyer has the right to lodge and argue an appeal on behalf of the injured party (s 8 CJP). With a few exceptions, such as the right to request the recusal of a judge and the right to challenge an expert, as well as some procedural variations to account for the adversarial nature of the trial, the Swedish procedure is the same as the German procedure. The fact that auxiliary prosecution is able to be employed in what are perceived to be such divergent systems indicates that the common law reluctance to use it is due to entrenched legal attitudes rather than real procedural differences. It is accordingly possible to utilise this procedure, in terms of which a victim is constituted an active party to the proceedings, in the UK in order to preclude secondary victimisation and to enhance victim empowerment. Provided that lawyers for auxiliary prosecutors are not permitted to address the court on sentence, this procedure does not infringe defendants’ due process rights (see below). It must be emphasised, however, that the procedure is available only to victims of serious offences in German and Swedish law, and that any moves to incorporate it into English law ought to be similarly restricted. Adhesion The majority of European jurisdictions10 accord injured parties the right to institute adhesion proceedings, viz proceedings in which the civil claim for compensation is joined to the criminal proceedings against the defendant. Several of these jurisdictions, including the Netherlands, Sweden and Spain, have adversarial trials (Brienen and Hoegen, 2000b, p. 647; Herrmann, 1996, p. 129). In view of the fact that the Netherlands has an adversarial trial process, this section focuses on the Dutch adhesion procedure. However, it must be noted that, as English law authorises the courts to impose penal sanctions in the form of compensation orders (s 130 of the Powers of Criminal Courts

10 These jurisdictions include, amongst others, Austria, Belgium, Denmark, France, Germany, Greece, Iceland, Liechtenstein, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden and Turkey. (See Brienen and Hoegen, 2000, pp. 77, 134, 217, 318, 363, 405, 440, 557, 586, 668, 735, 777, 856, 890 and 974.)

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(Sentencing) Act 2000; see Chapter 11) without requiring an application by the victim (Brienen and Hoegen, 2000b, p. 258), adhesion would add little of value to the English criminal process. In general, victims are regarded as mere prosecution witnesses in Dutch law and therefore do not play an active role in the proceedings (Ellison, 1997, p. 78). However, if a victim has directly suffered damage through a criminal act (Bijlsma, 2005, p. 63), s/he is eligible to act as a civil claimant, joining the claim for material and non-material damages to the criminal proceedings against the defendant (Ellison, 1997, p. 194). The victim may choose to join the proceedings during the pre-trial investigation stage or during the trial (Bijlsma, 2005, p. 70). The advantage of joining during the pre-trial stage is that the victim may avoid the need to appear at trial if s/he does not wish to do so, as the law does not require a personal appearance by the victim (ibid, p. 62). Once a victim has thus joined the proceedings, s/he has the status of an injured party (benadeelde partij; Brienen and Hoegen, 2000b, p. 668). Relatives of the injured party may also act as civil claimants (ibid, p. 668). If, after the victim has become an injured party, the prosecutor decides not to continue the prosecution, s/he must inform the injured party in writing and give reasons for the decision. The injured party may complain to the court about the prosecutor’s decision (Bijlsma, 2005, p. 63). The injured party has the right to legal representation during both the pretrial and trial stages, and may qualify for legal aid if s/he has limited resources (Brienen and Hoegen, 2000b, pp. 659, 669). Unlike German and Swedish auxiliary prosecutors, there is no provision for the court appointment or automatic state funding of lawyers in serious cases. If the injured party does not qualify for legal aid, s/he is accordingly restricted to the use of a private lawyer. The injured party nonetheless has a fairly significant right of pre-trial discovery. S/he may inspect and photocopy the dossier, but requires the permission of the prosecutor to do so. Such permission may be refused in order ‘to protect an ongoing investigation, the rights of the defendants, or because of ponderous arguments of general interest’ (Brienen and Hoegen, 2000b, p. 669). However, the injured party may appeal against such a refusal to the Minister of Justice and, further, to the Council of State (ibid, p. 669). In terms of the Terwee Act 1995, the court or the injured party may, at the trial stage, split the civil claim into complex and simple components. Whereas the latter will be determined by the court in the criminal proceedings, the former will be heard separately as an ordinary tort claim by a civil court (Ellison, 1997, p. 195). Research has shown that judges do not favour the adhesion procedure and are concomitantly quick to find that civil claims (or parts thereof) are too complex to be determined in the criminal trial (Brienen and Hoegen, 2000b, pp. 688–9). An injured party who does not qualify for legal aid will thus have to bear the costs of the civil suit, which is usually considerably more expensive than the criminal proceedings. This situation causes particular disadvantage to rape victims, as legal professionals take the view that most rape

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cases are complex and that civil proceedings are accordingly preferable (Ellison, 1997, p. 195). In addition to the pre-trial rights described above, the injured party has the following procedural rights during the trial, which may be exercised by his/her lawyer on his/her behalf:

• • •

to ask questions of witnesses or experts concerning the compensation claim; to use an interpreter if necessary; and to address the court concerning the compensation claim after each address by the prosecutor (Bijlsma, 2005, p. 72).

Although the injured party may not call witnesses or experts, s/he may ask the prosecutor to do so on his/her behalf (Brienen and Hoegen, 2000b, p. 669). By comparison with the German and Swedish auxiliary prosecutor, the participatory rights of the Dutch civil claimant are thus relatively restricted. In order to award the compensation claim, the offender must be convicted and given a penal sanction. The injured party has the right to appeal if the trial court does not grant the compensation claim, but may not appeal independently against an acquittal (ibid, pp. 669–70). The civil claimant must enforce the compensation claim without state assistance (ibid, p. 695). This disadvantage, coupled with the expense of having to bring separate civil suits in many instances, severely impedes the utility of the adhesion procedure and it is consequently not used very frequently (Ellison, 1997, p. 196). Of the European models considered in this section, the German and Swedish auxiliary prosecution procedure affords victims of serious offences the most extensive participatory rights. Although non-party victims have less far-reaching procedural rights, the fact that they may be legally represented in the pre-trial and trial processes empowers them considerably more than their English counterparts. The Dutch adhesion procedure is disadvantageous to many victims in practice and does not pose a viable alternative to the English compensation order, which, incidentally, has recently been introduced in the Netherlands (Brienen and Hoegen, 2000b, p. 658).

Victim participation and defendants’ rights This section contends that the introduction of auxiliary prosecution for victims of serious offences in the UK would resolve many of the problems that cause such victims to experience secondary victimisation by granting them access to information, the ability to question witnesses, to lead evidence, to make statements, and to object to humiliating and intrusive cross-examination (Rock, 2004, p. 531). In view of the fact that the victims from unequal social groups whose experiences of both primary and secondary victimisation constitute the focus of this book (see Chapters 4, 5, 6 and 13) are often subject to serious fatal

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and non-fatal offences against the person, they would be eligible to employ the auxiliary prosecution procedure. Victims of less serious offences, who do not face such extensive secondary victimisation but who nonetheless find the criminal justice process stressful and intimidating, ought to be permitted legal representation, despite the fact that they occupy the status of prosecution witnesses. Opponents of such active victim participation in common law jurisdictions take the view that adversarialism, being premised on the notion of a contest between the prosecution and defence, cannot accommodate the interests of a third party or the use of victims’ lawyers without violating the principle of equality of arms (Doak, 2005, p. 298). This view is founded on the assumption that victims’ interests will coincide with those of the prosecution, and thus that the defendant will face a double onslaught (Beloof, 1999, p. 320). Victim participation is accordingly regarded as infringing the defendant’s right to a fair trial. Spencer has argued, for instance, that ‘defendants must of necessity be the centre of the proceedings’ and that the interests of victims and witnesses ‘must inevitably take second place’ (2004, p. 37). However, as Goodey has emphasised, the depiction of victims’ and defendants’ rights as oppositional misrepresents ‘new avenues for criminal justice development’ (2005, p. 180). One of these new avenues flows from the recognition of the increasing convergence of adversarial and inquisitorial systems and the importance of adopting a broad principle of fairness in criminal proceedings that encompasses not only defendants’ but also victims’ rights. For instance, the fact that civil law jurisdictions, including Germany, have incorporated the principle of equality of arms has contributed to the merging of common law and civil law procedures (Frase and Weigend, 1995, p. 358). In addition, the fact that a jurisdiction as adversarial as the US permits lawyers for victims in the entire proceedings (see Beloof, 1999, pp. 320–1) and that the UK is experimenting with lawyers for families of homicide victims at the sentencing stage, indicates a comparable movement to closer proximity with civil law jurisdictions. One of the consequences of this convergence is an emphasis on the importance of an inclusive understanding of the principle of a fair trial. As Walther has contended, ‘the trial must be fair not only with regard to the position of the defendant but also with regard to the positions of witnesses and victims’ (2006, p. 113). Such an inclusive concept of fairness was adopted in Doorson v The Netherlands,11 where the European Court of Human Rights held that the principles of a fair trial require that defendants’ and victim/witnesses’ interests be balanced in appropriate cases (para 70; see Chapter 7). In addition, in Perez v France,12 the ECtHR took the view that a civil claimant in adhesion proceedings has a right to a fair trial in terms of article 6(1) of the European Convention for

11 (1996) 22 EHRR 330. 12 (2005) 40 EHRR 39.

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the Protection of Human Rights and Fundamental Freedoms 1950 and that this ‘approach is consistent with the need to safeguard victims’ rights and their proper place in criminal proceedings’ (paras 71–2; see Chapter 7). Moreover, the ECtHR routinely accepts the legal representation of victims.13 Despite its dicta favouring fairness to both victims and defendants, the ECtHR nonetheless espouses a strongly adversarial concept of trial proceedings, having held that, as a general rule, trials must comprise public hearings in which all evidence must ‘be produced in the presence of the accused . . . with a view to adversarial argument’.14 It has accordingly not endorsed the notion that the incorporation of victim’s interests per se disrupts the adversarial balance between the prosecution and defence. Sanders has contended that tripartite proceedings such as auxiliary prosecution are consistent with fairness to both victims and defendants. In terms of his freedom model, the criminal process ought to adopt measures that ‘maximize the totality of freedom’ of both victims and defendants (Sanders, 2002, p. 210). Auxiliary prosecution for victims of serious offences increases the opportunity for dialogue and understanding and reduces the possibility of secondary victimisation. It accordingly maximises victims’ freedom without reducing that of defendants (ibid, p. 222). By parity of reasoning, lawyers for victims of less serious offences also facilitate communication and comprehension and ameliorate the stressfulness of the criminal process. Furthermore, in view of the fact that such victims retain the status of prosecution witnesses with restricted procedural rights, the defendant’s freedom is likewise not reduced. Victim statements of opinion on sentence, meanwhile, do not increase victims’ freedom as much as they restrict defendants’ freedom (ibid, p. 210). Such statements generate the possibility that the court will give credence to sentiments based on vengeance (or forgiveness) that undermine the principle of proportionality in sentencing and hence infringe defendants’ due process rights. In light of the growing similarities between adversarial and inquisitorial systems, as well as the emphasis on an inclusive concept of fairness, the real barrier to the introduction of auxiliary prosecutors and victims’ lawyers is the existence of entrenched beliefs that these procedures violate the principles of adversarialism and procedural fairness to the defendant, rather than the principles in and of themselves (Goodey, 2005, p. 180). These beliefs, which are strongly held ‘in some influential quarters’ of the legal establishment (Rock, 2004, p. 529), rest on the assumption that active victim participation impermissibly vests control of the proceedings in the victim. However, as Wemmers has pointed out, models such as auxiliary prosecution (and ipso facto also victims’

13 See, for instance, SN v Sweden (2004) 39 EHRR 13, where the fact that the victim had been legally represented had no bearing on the court’s determination that the defendant had received a fair trial. 14 Doorson v The Netherlands (1996) 22 EHRR 330 at para 73.

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lawyers) do not involve victims in decision-making control, and, in any event, the issue does not concern giving victims control but ‘permitting victims to speak and to be heard’ (Wemmers, 2005, p. 130).

Conclusion In order to give substantive effect to its purported commitment to ‘giving victims a voice’ (Home Office, 2001b, p. 73), it is necessary that the government does more than merely provide them with negligible involvement in prosecutorial decisions or append their input to the tail end of the criminal process. Victim empowerment and the reduction of secondary victimisation require procedural rights during both the pre-trial and trial stages. This chapter has contended that European procedures such as auxiliary prosecution and victims’ lawyers are not only the most effective means of doing so but also ensure fairness to defendants. Rather than being viewed as anathema to the adversarial process, victim participation ought to be valued in and of itself, as representative of the dignity and respect which are due to victims as citizens in a participatory democracy (Edwards, 2001, p. 44).

Questions for further discussion

• • • • •

Should all victims have the right to legal representation? If so, should this right apply to the whole criminal process or only to the sentencing stage? Critically evaluate victim statements of opinion. Should victims of serious offences be permitted to act as auxiliary prosecutors? Is victim participation reconcilable with the defendant’s right to a fair trial?

Chapter 11

Victim compensation

Introduction This chapter evaluates state compensation in the UK against the backdrop of the government’s duties in terms of the European Convention on the Compensation of Victims of Violent Crimes 1983 (the Compensation Convention). The chapter contends that, while the early non-statutory Criminal Injuries Compensation Scheme (CICS) complied with these duties, the current tariff-based CICS may fall short of the requirements of the Compensation Convention in certain respects. In addition, the chapter discusses the government’s recent proposals for reform (Criminal Justice System, 2005b), arguing that the restrictions they seek to place on state compensation almost certainly violate the Compensation Convention. The chapter also assesses the measures available to encourage offenders to compensate victims, such as compensation orders, surcharges and recovery orders, in light of Council of Europe standards. It takes the view that, although these measures comply with the government’s duties in terms of the Framework Decision on the Standing of Victims in Criminal Proceedings (2001/220/JHA), their effectiveness is impeded by the inability of many offenders to make compensation payments and the difficulties in enforcing orders.

European provisions Victims’ entitlement to state compensation is regulated by the Compensation Convention, which is binding on the UK. If compensation is unavailable from other sources, Member States have a duty to make a contribution to the compensation of eligible victims, namely those who have suffered ‘serious bodily injury or impairment of health directly attributable to an intentional crime of violence’ as well as ‘the dependants of persons who have died as a result of such crime’ (article 2.1). The duty to compensate applies even if the perpetrator has not been prosecuted or punished (article 2.2). In terms of article 3, states in whose territory the offence took place must compensate victims who are citizens of states that are party to the

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Compensation Convention as well as citizens of any Member State of the Council of Europe who are permanently resident in the state where the offence occurred. In Ian William Cowan v Tresor public,1 the European Court of Justice held that the prohibition of discrimination on the ground of nationality in article 7 of the EEC Treaty means that a state must provide compensation to the citizen of another Member State on the same basis that it provides compensation to its own citizens. It cannot make a compensation award for physical injury sustained by the victim of an assault in its territory conditional upon the victim having a residence permit or being a citizen of a country with which it has a reciprocal agreement (para 20). The Compensation Convention provides that Member States must compensate eligible victims for, at least, loss of earnings, medical expenses, hospital costs, funeral expenses and loss of maintenance (in the case of dependants of deceased victims) (article 4). It thus envisages the award of sums that reflect the losses that victims have suffered due to the crime. However, it places certain limits on this loss-based criterion. In terms of article 5, for instance, Member States may set upper and lower limits beyond which compensation will not be awarded. In addition, article 7 provides that ‘compensation may be reduced or refused on account of the applicant’s financial situation’. Wealthy victims therefore may not qualify for the full amount of compensation. In a manner similar to the CICS (see below), the Compensation Convention is premised on the notion of the ‘innocent’ or ‘blameless’ victim. Article 8 provides that the amount of the compensation may be decreased or the award may be refused on the following grounds:

• • •

conduct on the part of the victim or the applicant ‘before, during or after the crime, or in relation to the injury or death’; the fact that the victim or the applicant was involved in ‘organised crime’ or was a member of ‘an organisation which engages in crimes of violence’; the making of an award, whether in full or at all, would be inconsistent with justice or public policy.

Article 9 guards against the possibility of victims receiving double compensation by permitting Member States to deduct or reclaim sums received by the victim ‘from the offender, social security or insurance or . . . any other source’. The non-binding Recommendation Rec (2006) 8 on Assistance to Crime Victims (2006) also contains provisions regarding state compensation. The classes of eligible victims and the nature of the losses in respect of which compensation should be paid are similar to those in the Compensation

1 1989 ECJ 195.

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Convention (see article 8). However, Rec (2006) 8 makes no reference to limits based on the victims’ conduct or financial circumstances and is therefore not overtly premised on the notion of the ‘innocent’ victim. In addition to provisions for state compensation for victims of violent crimes, the Council of Europe has affirmed the right of victims to be compensated by offenders. Article 9.1 of the Framework Decision provides that Member States must guarantee the entitlement of victims to receive a decision within a reasonable time, during criminal proceedings, concerning compensation by the offender, unless domestic law makes provision for the award of compensation in another way. Furthermore, Member States must encourage offenders ‘to provide adequate compensation to victims’ (article 9.2). However, the Framework Decision fails to delineate procedures, such as state enforcement of compensation orders, which will ensure that victims have access to the compensation that has been ordered. As will become evident in the discussion below of compensation by the offender, it is primarily the lack of mechanisms for the enforcement of measures such as compensation orders that renders them of limited use to victims.

Criminal injuries compensation This section commences by briefly discussing the origins and development of the CICS. It focuses on the provisions of the schemes that have been implemented in terms of the Criminal Injuries Compensation Act 1995, as well as recent government proposals for reform. Origins and development The CICS, a non-statutory scheme that was the first of its kind in Europe, was established in 1964 (Dignan, 2005, p. 43). Payments in terms of the scheme were ex gratia and victims accordingly had no legal right to compensation (Williams, 2005, p. 93). Victims of violent crime of any nationality were eligible for compensation in terms of the CICS. The UK accordingly complied, from the outset, with the requirements of the Compensation Convention and the case law of the ECJ (see above). Subject to certain exceptions, the amount of compensation was computed on the basis of common law damages in the law of tort. The aim was thus, as far as possible, to put the victim in the position s/he would have been in had the crime not occurred. Exceptions to this principle included the imposition of a minimum threshold for eligibility and a maximum limit for loss of earnings, as well as the ability of the Criminal Injuries Compensation Board (CICB) to deduct all sums received out of public funds by the victim in consequence of the crime (Duff, 1998, p. 114). In addition, like the Compensation Convention, an award could be reduced or refused on the basis of the victim’s conduct or involvement in criminal activity.

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During the late 1970s and the 1980s government opinion began to favour the introduction of a statutory scheme and the existing scheme, with some alterations, was thus embodied in the Criminal Justice Act 1988 (CJA 1988). The principle of common law damages was retained and ‘[o]n accepting an award, a claimant would have a legal right to the compensation awarded’.2 In terms of s 171(1), the scheme would come into existence only upon the determination of the Home Secretary. By the early 1990s, however, the government had become concerned at the rising costs of paying out claims based on common law damages, and accordingly decided not to bring the provisions of the CJA 1988 into existence. Instead, it announced that it planned to introduce a tariff-based scheme, in terms of which ‘injuries of comparable severity would be grouped into 25 tariff levels, ranging from £1,000 to £250,000, and there would be no separate payment made for loss of earnings or expenses’ (Duff, 1998, p. 125). The proposed scheme, which accordingly moved away from the principle of common law damages, was implemented by the Home Secretary in 1994 (ibid, p. 133). However, the tariff scheme did not survive judicial scrutiny. In R v Secretary of State for the Home Department, Ex parte Fire Brigades Union and Others,3 the majority of the House of Lords held that the Home Secretary had acted unlawfully in introducing the tariff scheme. Lord Browne-Wilkinson stated that the Home Secretary had a duty in terms of s 171 of the CJA 1988 to consider whether to bring the statutory scheme into operation. His introduction of the tariff scheme through the purported use of his prerogative power effectively prevented him from exercising this statutory duty and was thus unlawful (p. 554). Criminal Injuries Compensation Act 1995 Instead of abandoning the idea of a tariff scheme, the government enacted the Criminal Injuries Compensation Act 1995 (the 1995 Act), repealing the relevant provisions of the CJA 1988 (s 12(1)) and introducing a modified tariff scheme. Section 1 of the 1995 Act authorises the Home Secretary to devise and implement the scheme. Section 2 regulates the manner in which compensation is to be computed. It requires provision to be made for:

• • •

2 3

‘a standard amount of compensation, determined by reference to the nature of the injury’; an additional amount of compensation for loss of earnings and special expenses in cases specified by the Home Secretary; and additional amounts in cases of fatal injury.

R v Secretary of State for the Home Department, Ex parte Fire Brigades Union and Others [1995] 2 AC 513 (HL), 517. [1995] 2 AC 513 (HL).

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Section 2(3) provides that the standard amount is to be determined in terms of a tariff prepared by the Home Secretary or, if the relevant injury does not appear in the tariff, in terms of other relevant provisions of the scheme. The tariff thus represents the amount that will ordinarily be awarded, but which may be supplemented, in appropriate cases, by additional sums. The 1995 Act also grants victims the right to subject compensation decisions to internal review and, if they remain dissatisfied, to appeal against such review decisions (ss 4 and 5). The Criminal Injuries Compensation Scheme 1996 Acting in terms of his new powers, the Home Secretary implemented the modified tariff scheme on 1 April 1996 (Duff, 1998, p. 134). In terms of para 85 of the CICS (Home Office, 1995, the 1996 Scheme), the CICB was replaced by the Criminal Injuries Compensation Authority (CICA), which was henceforth to administer the Scheme. Although the 1996 Scheme has been replaced by the CICS 2001 (Home Office, 2001a, the 2001 Scheme; see below) for claims brought after 1 April 2001, most of its provisions have not been altered. This section accordingly engages in a full consideration of the 1996 Scheme’s provisions concerning eligibility for compensation and the method of computing such compensation before addressing the changes brought about by the 2001 Scheme. (I) ELIGIBILITY

In a manner similar to the Compensation Convention, as well as its nonstatutory predecessor, the 1996 Scheme is premised on the notion of the ‘innocent’ victim. Eligibility is subject to a range of exclusions covering circumstances deemed to indicate victim culpability in one or another respect. Victims who sustained a criminal injury on or after 1 August 1964 are eligible to claim compensation, as are close relatives of deceased victims (para 6), even if the perpetrator has not been convicted (para 10). In terms of para 8, read with para 9, a criminal injury comprises one or more personal injuries, including physical injury and mental injury and disease, sustained in the UK and ‘directly attributable’ to, inter alia, a crime of violence. The 1996 Scheme failed to define a crime of violence, leaving it to CICA and the Criminal Injuries Compensation Appeal Panel (CICAP) to determine, as a question of fact, whether the conduct in question constituted such a crime (Miers, 2006, p. 696). This lack of definition generated some controversy in R (August) v Criminal Injuries Compensation Appeals Panel; R (Brown) v Criminal Injuries Compensation Appeals Panel.4 August and Brown, who had both been under 16 years of

4 [2001] QB 774.

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age at the time, had been victims of sexual offences. However, on the evidence, they had consented to the perpetration of these offences. CICAP had refused their compensation claims, taking the view that, as they had consented to the activities, they had not been victims of crimes of violence and were accordingly ineligible for compensation (p. 778). The court, on review, upheld CICAP’s decision, confirming the view that not every indecent act with an underage child constitutes a crime of violence (pp. 786, 793). In August v UK,5 the European Court of Human Rights upheld the English court’s decision. It found that, as the perpetrator had been subject to criminal sanctions, the UK had discharged its duty to protect the applicant in terms of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. It held that article 8 does not include a right to receive compensation and that ‘the refusal by the courts to equate sexual offences against children with crimes of violence in all circumstances [does not deprive] the applicant of protection of his physical and moral integrity’. Article 8 had accordingly not been violated (p. 5). This approach is premised on the rationale that, despite the fact that the criminal law regards sexual activity with an underage child as a crime and does not recognise the child’s consent, the de facto consent of the child precludes the crime from being characterised as a crime of violence. It overlooks the reality that child sexual abuse involves an abuse of power that renders the conduct violent and that ought accordingly to vitiate the child’s consent. Victim Support has argued that this ‘abuse of power, which leaves the victim with no choice but to consent, must be taken into account’ and that such victims ought to be eligible for compensation (Victim Support, 2003, p. 4). Paragraph 7(b) of the 1996 Scheme contains another controversial exclusion. It provides that no compensation is payable ‘where the criminal injury was sustained before 1 October 1979 and the victim and the assailant were living together at the time as members of the same family’. This so-called ‘same roof’ principle effectively operates to exclude victims of domestic violence and intrafamilial sexual abuse from claiming compensation. In S v Criminal Injuries Compensation Board,6 the petitioner was a victim of child sexual abuse by her father, with whom she lived at the time. The court upheld the decision to refuse her compensation claim on the basis of the ‘same roof’ principle. In addition, it held that she could not claim unjustified discrimination in terms of article 14 read with article 6(1) ECHR because, being precluded from claiming by the ‘same roof’ principle, she did not have a civil right and the facts accordingly did not fall within the ambit of article 6(1) (para 145). It held further that, even if the facts did fall within the ambit of article 6(1), the discrimination was justified as the ‘same roof’ principle was a

5 Application no. 36505/02, 21 January 2003. 6 [2004] SLT 1173.

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proportionate means, based on financial considerations, to achieve the legitimate aim of having a scheme to compensate victims of crime (paras 153–4). It acknowledged ECtHR jurisprudence that the justification of discrimination on the basis of race, sex or religion requires ‘very weighty reasons’, but took the view that the same standard did not apply to mere compensation claims (para 154). The ECtHR has unfortunately adopted a similar approach to the ‘same roof’ principle. In Stuart v UK,7 the applicant, a victim of child sexual abuse, had been refused compensation on the basis of the ‘same roof’ principle, and had argued that this refusal violated articles 3, 8 and 14 ECHR. The ECtHR held that the positive duties of the state in terms of articles 3 and 8 do not include a duty ‘to provide compensation to the victims of ill-treatment administered by private individuals’ (para 1). It held further that the applicant’s claim that the 1996 Scheme violated article 14 by discriminating between victims who were subject to the ‘same roof’ principle and other victims who were entitled to compensation was unfounded, because it did not fall within the ambit of articles 3 or 8 (para 2). It accordingly dismissed the applicant’s claim. Victim Support has argued that the ‘same roof’ principle causes ‘extreme distress’ and self-blame to the victims to whom it applies and that it ought to be abolished (Victim Support, 2003, p. 6). Although the 1996 Scheme allows victims living in the same household as the perpetrator to claim compensation in cases after 1 October 1979, their claims are nonetheless still subject to restrictions. In respect of injuries after this date, para 16 provides that if ‘the victim and any assailant (whether or not that assailant actually inflicted the injury) were living in the same household as members of the same family’, compensation will be refused unless:

• •

apart from non-prosecution for good reasons, ‘the assailant has been prosecuted’; as regards intra-familial violence involving adults, the victim and the assailant have ceased living together prior to the date of the application and are unlikely to resume living in the same household.

Paragraph 16 applies to unmarried persons who live together as husband and wife. The second condition mentioned above does not apply to children who were injured in the familial sphere, but CICA must be satisfied that it would not be against the child’s interest to make an award (para 15). Paragraph 13 of the 1996 Scheme contains further exclusions from eligibility to claim compensation, which reflect the exclusions permitted by the Compensation Convention (see above). It provides that a claims officer may reduce or refuse compensation if the applicant:

7 Application no. 41903/98, 6 July 1999.

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did not take ‘all reasonable steps to inform the police’ or another appropriate body without delay; did not ‘co-operate with the police or other authority in attempting to bring the assailant to justice’; did not provide ‘reasonable assistance’ to CICA or another appropriate body in regard to the application; engaged in conduct ‘before, during or after the incident’ that rendered compensation partially or wholly inappropriate; had unspent previous convictions or other evidence of poor character that likewise rendered compensation partially or wholly inappropriate.

In terms of para 14, if the victim is deceased, the provisions of para 13 apply to both the deceased and the applicant. The exclusion of victims who do not report the crime or co-operate with the authorities may have a deleterious effect on victims from unequal social groups, such as victims of domestic violence and racially motivated and homophobic crime, who face barriers to the reporting of such offences (see Chapters 4, 5, 6 and 13). The ability of CICA to refuse or reduce compensation on account of the applicant’s conduct and previous convictions may also cause hardship. The impact of unspent convictions on the applicant’s claim is determined by employing ‘a “sliding scale” that attaches penalty points that depend on the nature of the sentence imposed and the lapse of time since its imposition’ (Miers, 2006, pp. 706–7). Approximately a third of all applications for compensation are refused due to the applicant’s conduct or unspent convictions (Goodey, 2005, p. 146). A victim whose offending is linked to his/her victimisation may be disadvantaged by a large reduction or a complete refusal of his/her claim. In R (on the application of M) v Criminal Injuries Compensation Appeals Panel,8 CICAP had reduced the applicant’s claim for compensation on account of sexual abuse by two-thirds due to her previous convictions, despite evidence that her criminal behaviour had been caused by her abuse. On review, the court took the view that CICAP’s decision to treat the applicant ‘as two-thirds responsible for her offending behaviour required further elaboration’ (para 80). CICAP had not provided sufficient reasons for its decision and the court accordingly exercised its review powers to quash the decision. While this case represents a positive outcome for the applicant, many other victims whose cases do not reach court may have their claims refused due to criminal or otherwise inappropriate conduct that flows from their victimisation, which should not have a bearing on their claims. However, in view of the fact that the Compensation Convention permits such exclusions without considering the fact that the victim’s criminal conduct may be linked to his/her victimisation, there is unfortunately no duty on the government to remove or modify this exclusion.

8 [2001] EWHC Admin 720.

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(II) COMPUTATION OF COMPENSATION

In terms of para 22(a), read with para 25 of the 1996 Scheme, a ‘standard payment’ is to be made in respect of a compensation claim. This ‘standard payment’ is calibrated along a scale of 25 different fixed levels of compensation that apply to various injuries. The 1996 Scheme consequently retains the tariff system that was declared unlawful by the House of Lords (see above). However, it permits the tariff to be supplemented by sums for loss of earnings and special expenses in cases where victims ‘were incapacitated, as a result of their injury, for more than 28 weeks, this period being tied to the time for which statutory sick pay is payable’ (Duff, 1998, p. 134; sub-paras 22(b) and (c)). Although the determination of the tariff is made by reference to the injury only (see above) and not to the actual expenses and consequential loss sustained by the victim, the 1996 Scheme does not necessarily contravene the injunctions in the Compensation Convention to make payments for medical expenses, hospital costs and loss of earnings in the case of victims who qualify for the tariff only, not having been incapacitated for more than 28 weeks. The Convention duties to pay for medical expenses and hospital costs are arguably met by the availability of the National Health Service. Furthermore, the fact that statutory sick pay is available for such victims is consistent with the duty to make payments for loss of earnings. However, unemployed persons, as well as many workers, such as shopkeepers who are self-employed, persons in receipt of low wages and persons who work on short contracts, do not qualify for statutory sick pay (Duff, 1998, p. 136). In this respect, the 1996 Scheme falls short of the requirements of the Compensation Convention concerning payments for loss of earnings. Paragraph 38 of the 1996 Scheme provides that the parents and children of deceased victims, as well as their spouses or partners who had been living with them for a specified period or, in the case of spouses or former spouses, who had been financially dependent upon them at the time of their death, are entitled to compensation. If the victim died due to the victimisation, compensation comprises the standard tariff as well as claims for loss of dependency and loss of parental services, where appropriate (see paras 39–42). The 1996 Scheme thus complies with the requirement in the Compensation Convention that states must make payments for funeral expenses and loss of maintenance (see above). The maximum limit for a compensation claim is £500,000 (para 23). In cases where the victim receives payments, such as insurance, social security benefits or court-awarded damages from the offender, in respect of the injury, all compensation other than tariff-based awards will be reduced accordingly (para 45; para 48). These provisions, which correspond to those of the Compensation Convention, are aimed at preventing double compensation at the taxpayer’s expense. Prior to 1 October 2006 (see below), the combination of this provision and the rules of the social security system had a dual impact on those victims in receipt of social security. On the one hand, their compensation awards were

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reduced by the amount of social security they received in respect of the injury. On the other hand, the compensation that they received was regarded ‘as capital for the purpose of calculating means-tested benefits’, reducing the benefits payments of many claimants (Williams, 2005, p. 95). Socio-economically disadvantaged victims were accordingly in an invidious position. In view of the restrictive prerequisites for claiming loss of earnings and special expenses, the majority of victims qualify only for the standard tariff applicable to their injury (Duff, 1998, p. 134). Despite the furore that accompanied the previous attempt to introduce a tariff by executive action, therefore, the government managed to establish a statutory tariff-based scheme that has remained firmly entrenched for the last decade (see below). The Criminal Injuries Compensation Scheme 2001 An updated Scheme was brought into effect on 1 April 2001 and applies to all applications for compensation received by CICA on or after that date. With certain minor modifications, its provisions concerning eligibility are the same as those in the 1996 Scheme (para 6 and para 8). Thus victims who have sustained physical or mental injuries (para 9) that are ‘directly attributable’ to, inter alia, a crime of violence are, in principle, eligible for compensation. Like its predecessor, the 2001 Scheme retains the ‘same roof’ principle (para 7(b)) and restricts compensation claims by victims of intra-familial abuse who have been victimised after 1 October 1979 (para 17). It also contains the same exclusions concerning the failure of victims to co-operate with the authorities and inappropriate conduct on their part (para 13). However, it introduces a further exclusion based on the consumption of alcohol or drugs. Paragraph 14 provides that, when considering the applicant’s conduct before, during and after the crime, the claims officer may refuse or decrease an award if he or she is of the view that the applicant contributed to the circumstances causing the injury by consuming excessive amounts of alcohol or using illegal drugs and that this contribution occurred in a manner that renders ‘a full award, or any award at all’ inappropriate. Victim Support is critical of this exclusion, arguing that intoxication in and of itself should not be taken into account in deciding whether an applicant is eligible for compensation (Victim Support, 2004a). However, as the Compensation Convention permits exclusions based on the victim’s conduct, it is unlikely that this additional exclusion would fall short of its requirements. Apart from the fact that the tariffs are revised in order to reflect the rate of inflation (Rock, 2004, p. 283), the amount of compensation is calculated in the same way as under the 1996 Scheme. Thus eligible victims are entitled to the standard tariff in respect of their injury, as well as compensation for loss of earnings and special expenses if they are incapacitated for longer than 28 weeks ‘as a direct consequence of the injury’ (para 23). In response to criticisms of the low tariff for child victims of sexual abuse under the 1996 Scheme, the 2001

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Scheme increases the tariff in this respect (Rock, 2004, p. 283). It also extends the provisions concerning claims by close relatives of deceased victims to samesex partners (para 38). The 2001 Scheme retains the maximum limit of £500,000 (para 24) and replicates the provisions concerning the deduction of awards received by victims from other sources, such as social security, insurance and civil claims (para 45 and para 48). The unfortunate impact on victims in receipt of social security benefits that flowed from the deduction of such benefits from compensation awards as well as from the fact that the compensation was viewed as capital for the purpose of assessing eligibility for benefits (see above) has been ameliorated with effect from 1 October 2006. Compensation payments are now generally excluded from the computation of means-tested benefits (Criminal Justice System, 2005b, p. 19), although benefits are still deducted from compensation awards. It appears from the above analysis that, apart from the restrictions concerning awards for loss of earnings that have a detrimental impact on persons who do not qualify for statutory sick leave, the provisions of both the 1996 and the 2001 Schemes comply with the Compensation Convention. Furthermore, the ‘same roof’ principle and the rule that precludes sexual offences involving consent by child victims from being characterised as crimes of violence, thereby excluding them from the Schemes, have been approved by the ECtHR, leaving victims in an unenviable position in these cases. Proposals for reform The government has recently signified its intention to subject the CICS to farreaching revisions that will inure to the detriment of many victims. It proposes to ground the scheme on the seriousness of the injuries, such that only the most serious injuries will qualify for compensation. ‘Seriousness’ will be given a ‘clinical definition’, which will draw ‘on the experience of the civil courts in awarding damages, the insurance industry . . . and the medical profession’ (Criminal Justice System, 2005b, p. 18). Less serious injuries will be excluded from the CICS and will qualify instead for support and assistance from Victim Care Units (see Chapter 8). In addition, serious injuries that qualify for compensation will benefit from increased tariff payments but will no longer attract compensation for loss of earnings and special expenses. The current maximum of £500,000 will also be raised (ibid, p. 18). However, the present computation of compensation will continue to apply to sexual offences and homicides, due to the trauma involved in such offences (ibid, p. 19). These proposals place considerations of cost above the entitlement of victims to receive compensation. As Sugarman has argued, the intention is clearly to define seriousness in such a way as to ‘ “set the bar very high” in an attempt to deprive many potential claimants of a financial award’ (2006, p. 188). Although the Compensation Convention reflects the criterion of the seriousness of the

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injury in its definition of eligible victims, it requires states to make payments for all the listed forms of actual and consequential loss in all cases of serious injury flowing from intentional crimes of violence (see above), not only sexual offences and homicides. Increased tariff payments and a higher maximum amount may not necessarily cover all the listed losses flowing from intentional crimes of violence that do not attract additional sums for loss of earnings and special expenses. It is thus doubtful whether the proposed reforms comply with the Compensation Convention. Whether the government will succeed in revising the 2001 Scheme in terms of its proposals or whether it will be forced to abandon its plans in order to placate an irate public remains to be seen.

Compensation by the offender Apart from the provisions of the Compensation Convention requiring Member States to ensure effective state compensation for victims of violent crimes, the Framework Decision also requires them to take steps to ensure that victims receive a decision concerning compensation during court proceedings and to encourage offenders to pay compensation to their victims (see above). While the measures for compensation by offenders discussed in this section comply with these requirements, there are several practical difficulties, such as the courts’ reluctance to order compensation and problems with enforcing orders, which impede victims’ effective access to such compensation. Compensation orders Since the Criminal Justice Act 1972 the courts have been empowered to impose compensation orders, in terms of which offenders are required to compensate victims for any loss, damage or injury suffered in consequence of the crime (Ashworth, 2005, p. 298). The provisions for compensation orders were revised in the Criminal Justice Acts 1982, 1988 and 1991 and are currently enshrined in the Powers of Criminal Courts (Sentencing) Act 2000 (PCCSA). Section 130(1) of the PCCSA enables the court to impose a compensation order either instead of or in addition to another sentence, unless the sentence is mandatory or fixed by law, in which case the compensation order may only be imposed in addition to the other sentence. The order may be made by the court mero motu or on application by the victim. The offender may be ordered to pay compensation for ‘personal injury, loss or damage’ arising from the offence, or funeral expenses or bereavement payments if the offence resulted in a death. In terms of s 130(3), the court must provide reasons for refusing to order compensation in instances in which it has the power to do so. Section 130(11) requires the court to have regard to the offender’s means in its decision whether to award compensation and, if so, in what amount. In addition, s 130(12) provides that, if the offender’s means do not extend to the payment of both compensation and a fine, the court must give preference to compensation. Fines and compensation

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orders are enforced in the same way and offenders may be sentenced to a period of imprisonment if they fail to pay (Ashworth, 2005, p. 300). Compensation orders compare favourably with the adhesion procedure adopted in most European states, including the Netherlands, Sweden and Germany, in terms of which the victim’s compensation claim is joined to the criminal proceedings against the defendant (see Chapter 10). Unlike adhesion, they do not require an application by victims and thus relieve them of the burden of establishing their claims (Brienen and Hoegen, 2000b, p. 258). In addition, whereas orders made in adhesion proceedings must be enforced by the civil party, compensation orders are enforced by the state (Brienen and Hoegen, 2000a, p. 288). From a continental perspective, they are accordingly regarded as a success. Such orders nonetheless have several shortcomings, which preclude many victims from receiving compensation in practice. Compensation orders are often not made because the requisite information is not available (Victim Support, 2004a). Furthermore, research has shown that courts often do not make compensation orders in cases in which they have the power to do so, and that the use of compensation orders is declining (Ashworth, 2005, p. 301). One of the reasons for this reluctance on the part of the courts relates to the reality that many offenders lack the financial means to pay compensation (Spalek, 2006, p. 103). Another reason concerns the courts’ unwillingness to order compensation in cases where the offender is sentenced to imprisonment (ibid, p. 103). Even in cases where compensation is ordered, there are frequently difficulties of enforcement. Payment may be subject to delay (ibid, p. 103) or made in small instalments that ‘may be perceived as insulting or as trivializing the original offence, as well as serving as a periodic reminder of the loss involved’ (Williams, 2005, p. 98). In an effort to facilitate the enforcement of compensation orders, the government has proposed to clothe the courts with the power to issue attachment orders, in terms of which the offender’s earnings or benefits are attached to meet the amount of the compensation (Home Office, 2004, para 32; Criminal Justice System, 2005b, p. 14). It is doubtful whether such orders will have much practical value, as they will necessarily involve monthly instalments, which may be small, particularly where benefits are attached, and will thus not resolve the above problems with the receipt of periodic instalments. In order to ensure that victims receive their compensation as soon as possible, Victim Support has urged the government to introduce a system in which it pays compensation to victims up-front and empowers the courts to recover the amount from offenders. Despite its initial willingness to establish such a system, the government has, due to cost considerations, abandoned its plans to do so (Victim Support, 2004a). Although compensation orders represent a more viable method of obtaining compensation from offenders than the European adhesion procedure, their limitations preclude them from constituting an effective means of

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compensating victims for the losses consequent upon their victimisation. It is thus fortunate that, unlike certain other jurisdictions, the UK does not require victims to claim compensation from offenders as a prerequisite to claiming state compensation. Reparation orders Provisions for reparation orders in respect of offenders under the age of 18 years were introduced in the Crime and Disorder Act 1998 (CDA) and have since been consolidated in the PCCSA. In view of the fact that these orders are based on the principles of restorative justice, they are assessed briefly in this section and considered more fully in Chapter 12. Section 73(1) of the PCCSA empowers courts to make reparation orders for offences that do not carry a sentence fixed by law. In terms of these orders, young offenders may be required to make reparation to identifiable victims or to the community. However, these orders may not be coupled with custodial sentences or community orders (s 73(4)). Section 73(3) provides that the making of reparation excludes the payment of financial compensation. Young offenders may accordingly be required to make amends to the victim by apologising, for instance, or by repairing damaged property (Home Office, 1997). The victim must consent to the making of the order, and the order may not oblige the offender to engage in work for more than a total of 24 hours (s 74(1)). The requirement that the victim must consent reflects the restorative principles that inform these orders, ‘the underlying idea [being] that both parties may obtain some benefit from [the] process’ (Wasik, 1999, p. 471). However, the government has emphasised that, although the victim’s opinion about the nature of the reparation must be considered, the ultimate decision is that of the court (ibid, p. 476). The court is under a duty to provide reasons for not imposing a reparation order in cases where it is empowered to do so (s 73(8)). While victims of less serious offences, primarily property offences, may experience some therapeutic benefit from participating in decisions about reparation as well as a measure of closure by accepting the offender’s attempt to make amends, victims of offences against the person may find the process traumatic and conducive to secondary victimisation (see Chapter 12). Moreover, victims who are in need of financial redress are unlikely to derive much benefit from non-financial reparative measures. In any event, reparation orders involving the making of amends to victims directly occur relatively infrequently in practice. Research has shown that courts are reluctant to grant adjournments in order that victims may be consulted about reparation prior to imposing sentence. In consequence, most reparation orders require young offenders to engage in community reparation (Dignan, 2005, p. 135).

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Surcharges In an attempt to spread the cost of compensation, the government has recently advocated the introduction of surcharges for offenders (Home Office, 2004, para 40). Section 14 of the Domestic Violence, Crime and Victims Act 2004 inserts provisions into the Criminal Justice Act 2003 (CJA 2003) in order to give effect to this proposal. Courts are required to impose surcharges when dealing with offenders, but must reduce the amount of the surcharge if they impose compensation orders in circumstances where the offender has insufficient means to meet both the compensation order and the surcharge (s 161A CJA 2003). Fines may also be reduced in such circumstances (s 161B). In terms of s 15 of the DVCVA, the maximum sum payable by way of a fixed penalty notice is increased to incorporate a surcharge. Income derived from these surcharges is paid into the Victims’ Fund, which is used to compensate individual victims as well as to provide funding to victims’ organisations (Williams, 2005, p. 97). Victim Support has argued that surcharges involve small amounts that victims may regard as demeaning or insulting. Moreover, they may lead to courts reducing the amount of compensation orders in cases where the offender has insufficient means to pay both the surcharge and compensation (Victim Support, 2004a). Concern has also been expressed that surcharges may result in unfairness to offenders (Williams, 2005, p. 97). Recovery orders In a further attempt to cut costs, the government recently proposed that CICA be able to recover the compensation it has paid to victims by claiming it from offenders (Home Office, 2004, para 72). Section 57 of the DVCVA accordingly amends the 1995 Act by empowering the Home Secretary to enact regulations to provide for recovery orders in terms of which offenders are ordered to pay all or part of the compensation that is directly attributable to the offence of which they have been convicted. The money recovered by CICA is to go into the Victims’ Fund to be disbursed to individual victims and victims’ organisations (Williams, 2005, p. 97). Although Victim Support has expressed its approval of these orders, it has cautioned that offenders who know their victims may attempt to exact revenge if they are given a recovery order (Victim Support, 2004a). Measures must thus be taken to ensure that victims are adequately protected in such circumstances. The introduction of recovery orders mirrors similar provisions in other European jurisdictions. However, in view of the limited means of many offenders, the existence of these orders is unlikely to generate significant income in practice (Home Office, 2004, paras 76–77). As the preceding discussion indicates, the measures for holding offenders accountable for the losses sustained by their victims do not ensure effective compensation for victims, and the co-existence of the CICS is necessary to

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enable victims to recoup these losses adequately. The fact that the CICS is the primary and most effective source of compensation for victims aggravates the potentially devastating effects of the government’s current proposals to curtail its ambit (see above).

Conclusion This chapter has shown that the CICS has several shortcomings that generate difficulties for victims, such as the reduction or refusal of claims on the basis of the victim’s past conduct or criminal activity, the exclusion of victims under the ‘same roof’ principle, the rule that sexual offences involving consenting child victims do not qualify for compensation, and the lack of payment of special expenses and loss of earnings to victims who do not qualify for statutory sick pay. Despite these shortcomings, however, the CICS nonetheless complies with the Compensation Convention in most respects and is the most generous state compensation scheme in Europe (see Rock, 2004, p. 266). The current government proposals to curtail its ambit extensively are thus a source of great concern, particularly in light of the serious barriers to effective victim compensation by offenders. It is to be hoped that the government will reconsider these proposals and leave victims with one of the most significant legitimate expectations or quasi-rights (Rock, 2004, p. 284) that they have been given in the English criminal process.

Questions for further discussion

• • • • •

Why is the CICS regarded as being based on a notion of the ‘innocent’ or ‘deserving’ victim? What is the difference between compensation on the basis of common law damages and compensation in terms of the 1996 and 2001 Schemes? Should the ‘same roof’ principle be abolished? How will the recent proposals for reform affect victims? Why do victims experience difficulties in obtaining compensation from offenders?

Chapter 12

Victims and restorative justice

Introduction This chapter documents the growing recognition of restorative justice (RJ) processes at the level of the Council of Europe, as well as at the international level. Although the entitlement, if not the right, of victims to participate in such processes may be inferred from the provisions of the Framework Decision on the Standing of Victims in Criminal Proceedings (2001/220/JHA), this chapter contends that the benefits of RJ for victims are more apparent than real and that English law and policy should focus on improving the position of victims within the criminal justice system rather than on devising means to facilitate victim participation in restorative processes. To this end, it discusses government policy and restorative initiatives currently in place in England and Wales and highlights the disadvantages of such initiatives for victims generally. In addition, it contends that RJ does not take into account social inequalities and that RJ processes are thus inappropriate for victims from unequal social groups, such as victims of gender-based violence and racially motivated and homophobic crime. In order to facilitate the analysis, the chapter commences by examining briefly the central concepts and features of RJ.

Restorative justice paradigm RJ has been described as an eclectic ‘accretion of practical experience’ rather than ‘a single academic theory of crime or justice’ (Pollard, 2000, p. 10). A restorative perspective of crime views it as arising from unresolved conflict and necessitating dialogue between victims, offenders and the community, in order that its past effects may be addressed (Elton and Roybal, 2003, p. 50). The victim, the offender and the community are the central ‘stakeholders’, who must all participate in the restorative process in order that the needs of victims may be addressed and offenders may be held accountable for rectifying the harm they have caused (Reimund, 2004/2005, p. 670). RJ aims to achieve greater victim participation, more offender accountability and a larger degree of community protection than is possible within the traditional criminal justice system

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(Shenk, 2001/2002, pp. 190–1). The emphasis is on the restoration of ‘right relations’ (Thorburn, 2004/2005, p. 873). However, there is a divergence of opinion amongst RJ proponents concerning the meaning of restoration. Those who emphasise restorative processes (the ‘encounter’ conception) highlight the restorative benefits of a meeting between the stakeholders outside the criminal justice process (Johnstone and Van Ness, 2007, p. 9). Meanwhile, those who adopt a ‘reparative’ conception, while favouring a restorative encounter, also think it is possible for ‘partially restorative solutions to problems of crime’ to emerge outside such encounters by means of ‘reparative sanctions’ imposed in the ‘formal criminal justice system’ (Johnstone and Van Ness, 2007, p. 14). Proponents of the encounter conception argue that, in order to be restorative, the process must embody certain key values, such as ‘consensual participation’ by the victim, offender and community representative, respectful dialogue, the balancing of the parties’ interests and the principle of voluntariness (Dignan, 2002, p. 172). They advocate processes, such as victim–offender mediation, restorative conferencing and community conferencing (Obold-Eschleman, 2004, p. 581; see below). As long as a restorative process is used, proponents regard the outcome as appropriate (ibid, p. 582). Process approaches have been criticised for failing to appreciate the importance of ensuring restorative outcomes (Dignan, 2002, p. 174). Bazemore and Walgrave – proponents of the ‘reparative’ conception – take the view that RJ ‘is primarily oriented towards restoring the harm that has been caused by a crime’ (Walgrave, 2002, p. 192). For ‘outcomes’ proponents, although deliberative processes are more conducive to restorative outcomes, non-deliberative, coercive processes resulting in partial restoration should be used where deliberative processes fail or cannot be employed (Walgrave, 2007, p. 565). Measures such as restitution, community service, victim support, victim compensation and offender rehabilitation programmes are therefore regarded as restorative (Van Ness and Nolan, 1998, p. 54). A third group of scholars advocates a combination of restorative processes and outcomes, taking the view that such a combination is necessary for ‘a fully restorative system’ (ibid, p. 54; Obold-Eschleman, 2004, p. 583). RJ professes to be victim-centred, holding that ‘victims’ needs should be the starting point of justice’ (Williams, 2005, p. 58). It advocates the empowerment of victims by ‘providing them with a forum in which their voices are both heard and respected’ (Green, 2007, p. 176). This forum, which is characterised by informality, dialogue and open communication, enables victims to tell their stories and to express their emotions (Gay, 1999/2000, p. 1654). In addition, they are able to ask offenders basic questions, such as why the crime was committed against them (Johnstone, 2002, p. 66). Furthermore, victims are said to need to hear offenders express their remorse and apologise for having committed the crime (Gay, 1999/2000, p. 1654). RJ proponents contend that the interaction between victim and offender increases

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the chances of this occurring (Strang and Sherman, 2003, p. 28). It is also argued that complete restoration may require victims to be able to forgive the offender (ibid, p. 28). Apart from the healing and empowerment that participation in the process facilitates, the most significant need of victims is restitution for the harm they have suffered. Even if full material compensation is not possible, partial compensation is still restorative due to its symbolic value (Johnstone, 2002, p. 66). Participation in a restorative process, coupled with the attainment of restorative outcomes, such as compensation and apology, is said to provide victims with healing and ‘closure’ and therefore enable them to put the offence behind them. RJ proponents advocate diverse conceptions of the relationship between RJ and the formal criminal justice system. Some adopt an abolitionist perspective, in which RJ is regarded as an alternative paradigm that should replace the formal system (Dignan, 2005, p. 106). However, although this view was more widely held in the early stages of the RJ movement, few scholars currently maintain this position. Most RJ proponents adopt either a separatist or an integrationist perspective. Separatists argue that the goals, processes and values of RJ and the traditional criminal justice system are fundamentally at odds with one another. They envisage a dual system in which restorative processes function entirely independently of the formal system, in order to avoid being ‘contaminated’ by the traditional system (ibid). Dignan points out the disadvantages of the separatist approach. First, independent schemes generally suffer from low referral rates and thus struggle to remain viable. Second, they run the risk of facilitating the ‘double punishment’ of offenders by offering their services to offenders who also face the prospect of formal sanctions. Third, a separatist agenda will, in all probability, result in the measure being ‘doomed to a precarious and marginal existence at the periphery of the criminal justice system’ (Dignan, 2002, p. 179). However, there are also more principled reasons for rejecting a separatist approach. Walgrave takes the view that, due to the possibility of power imbalances in RJ processes, they may yield unjust outcomes and hence require the checks and balances afforded by the criminal justice system (2007, p. 561). In particular, the absence of formal procedural safeguards in restorative processes may infringe offenders’ due process rights (Reimund, 2004/2005, pp. 683–4). RJ measures ought therefore to be conducted against the backdrop of the protective sanctions afforded by the traditional criminal justice system. Integrationists have devised various models of integrating RJ and the formal system. Braithwaite posits a ‘regulatory pyramid’ in which RJ forms the basis of criminal justice interventions, but which envisages the use of deterrent strategies and, ultimately, incapacitation, for cases where RJ fails. However, he emphasises that these punitive strategies must incorporate RJ values wherever possible and advocates ‘de-escalation back down the pyramid to restorative justice whenever punishment has succeeded in getting the safety concerns under control’ (Braithwaite, 2002, pp. 166–7).

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Similarly, Walgrave advocates a ‘maximalist’ approach, in terms of which restorative measures must be used for as wide a range of offences as possible (2000, pp. 263–4), but in which ‘restorative coercion’ must be employed where RJ fails. He argues that voluntary RJ has limits and that force must be used in many cases. This necessitates ‘a system that can use coercion, according to due process, to protect citizens from offenders and from abuse of authority as well’ (ibid, p. 272). Dignan criticises Braithwaite’s model for being amenable to increasingly punitive responses to ‘repeat and recalcitrant offenders’ and for failing to address the flaws of the traditional criminal justice system (2002, p. 180). Instead, he proposes a ‘systemic’ model in which RJ forms the foundation of criminal justice interventions, but where RJ fails, court-imposed measures are themselves transformed in accordance with RJ principles. Such transformation would require the courts, inter alia, to impose ‘restoration orders’, such as victim compensation or reparation. He does, however, reserve incapacitation for cases where there is a danger of serious physical harm to others (Dignan, 2002, pp. 180–3). Despite the existence of divergent theoretical opinions concerning the relationship between RJ and the traditional criminal justice system, a statedominated model is discernible in international and European instruments as well as in English law, policy and practice.

International and European provisions From the end of the 1990s onwards, RJ has become increasingly prominent in international and European forums (Willemsens and Walgrave, 2007, p. 492). This section comprises an assessment of the two central Council of Europe instruments, viz Recommendation No. R (99) 19 on Mediation in Penal Matters (1999) and the Framework Decision, as well as the UN Resolution on Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (2002) (the UN Resolution). While the Framework Decision is a specifically victim-centred instrument, the other instruments advert to victims’ interests only within the context of their overall concern with mediation or restorative justice. The scope of Recommendation No. R (99) 19 is restricted to mediation processes rather than RJ processes more broadly conceived. Article I provides that the guidelines contained in the Recommendation apply to any process in terms of which the victim and offender may, if they choose, participate actively in resolving issues consequent on the crime with the assistance of ‘an impartial third party (mediator)’. Article II recommends that mediation be generally ‘available at all stages of the criminal justice process’ and states that autonomy should be afforded to mediation services ‘within the criminal justice system’. In addition, article IV requires that decisions to refer cases to mediation and assessments of mediation outcomes ‘should be reserved to the criminal justice authorities’, thus subjecting mediation to the control of the criminal justice

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system. Moreover, article III envisages a procedural model analogous to the court process. It provides that procedural safeguards, particularly the right to legal assistance, must be applied to mediation processes. The Framework Decision also uses the language of mediation rather than restorative justice. Article 10 provides that Member States must ‘promote mediation in criminal cases’ for appropriate offences and must ensure that any agreement that is reached during mediation must be taken into account. The fact that a provision requiring the promotion of mediation is included in the Framework Decision, which is essentially an instrument dealing with the position of victims, may be taken to infer the existence of an entitlement on the part of victims to participate in mediation. However, unlike other provisions of the Framework Decision, such as those relating to the provision of information and protection to victims (articles 4 and 8; see Chapter 9), article 10 does not expressly refer to mediation as a right. Contrary to the two Council of Europe instruments, the UN Resolution does not restrict its understanding of RJ to mediation processes. Article I.1 defines restorative justice programmes as those that use ‘restorative processes and [seek] to achieve restorative outcomes’. Restorative processes are those involving the active participation of victims and offenders, as well as other affected individuals or members of the community in appropriate cases, in resolving the issues consequent on the crime, usually with the assistance of a facilitator, and include ‘mediation, conciliation, conferencing and sentencing circles’ (article I.2). Restorative outcomes constitute agreements reached in consequence of restorative processes including ‘responses and programmes such as reparation, restitution and community service’, which aim to satisfy the parties’ needs and responsibilities and to achieve ‘the reintegration of the victim and the offender’ (article I.3). This comprehensive definition of RJ fulfils the criteria of those RJ proponents who favour the adoption of a holistic approach that focuses on both processes and outcomes (see above). Like its European counterparts, however, the UN Resolution subjects RJ programmes to the overall control of the criminal justice system. Article II.11 provides that in instances where RJ is not appropriate or possible, ‘the case should be referred to the criminal justice authorities’ for a decision on how to proceed. In addition, unlike the European instruments, it provides that criminal justice officials should ‘encourage the offender to take responsibility vis-à-vis the victim and affected communities, and support the reintegration of the victim and the offender into the community’. It accordingly adopts an integrationist approach akin to Dignan’s ‘systemic’ model (see above). The UN Resolution does require procedural safeguards and judicial oversight of RJ programmes. Although such programmes may be employed at all stages of the criminal justice process (article II.6), ‘procedural safeguards guaranteeing fairness to the offender and the victim’, particularly the right to legal counsel, must be adopted (article III.13). In addition, the outcomes of agreements reached in RJ programmes must be supervised by the courts in appropriate

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cases or included in their decisions (article III.15). The importance of due process concerns and judicial oversight has been recognised by RJ proponents who advocate an integrationist model (see above). The recent focus on RJ in international and European instruments mirrors the increasingly central role that it has come to play in national legal systems. However, the two instruments that seek to regulate RJ in detail, viz the UN Resolution and Recommendation No. R (99) 19, are not binding, leaving the determination of the status of RJ to individual states. Furthermore, as indicated above, the Framework Decision may be interpreted, at best, as granting victims an entitlement rather than a full-blown right to participate in mediation processes.

Restorative justice in England and Wales This section comprises an overview of government policy concerning RJ, as well as a detailed description of the various RJ processes that are currently operating both within and alongside the criminal justice system in England and Wales. Government policy During the 1990s, the use of RJ was restricted to youth justice policy. The three ‘Rs’ of RJ, viz responsibility, restoration and reintegration, were regarded by the government as integral to this policy (Home Office, 1997). Young offenders (and their families) must be required to take responsibility for the offending; they must apologise and make amends to victims in order to restore their relationship; and they must be reintegrated into the community after they have rectified the wrong (Dignan, 2005, p. 109). The making of amends, or reparation, was of greatest concern to the government. It accordingly ‘constitutes a key theoretical and practical base’ for several recent interventions aimed at young offenders, such as reparation orders in the Crime and Disorder Act 1998 and referral orders in the Youth Justice and Criminal Evidence Act 1999 (Crawford, 2000, p. 296; see below). The government reaffirmed its commitment to RJ in its White Paper Justice for all (Home Office, 2002b). It expressed the view that RJ schemes may provide ‘constructive, community-based responses to crime’, bringing together all those ‘with a stake in a specific offence to resolve how to deal with the aftermath of the offence and any implications for the future’ (Home Office, 2002b, paras 5.8, 7.32). However, its first comprehensive RJ strategy was outlined in the consultation document Restorative justice: the government’s strategy (Home Office, 2003a). It contended that RJ provides victims with a stronger ‘voice’ in the criminal process and ensures that offenders assume ‘responsibility for their actions’ and cease committing crimes (para 1.4). It adopted a broad conception of RJ, encompassing diverse RJ processes and outcomes, including mediation,

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family group conferences and reparation. It advocated the application of these measures to young offenders as well as adults, and to minor and more serious offences, such as robbery and burglary (para 2.18). This inclusive approach was to be contextualised within a victim-centred process emphasising care and respect for victims (Home Office, 2003a, p. 34). The government’s overall objective was to ‘maximise the use of restorative justice’ in order to cater for the needs of victims and to reduce recidivism (para 5.1). It proposed a dual strategy to achieve this objective, which comprised incorporating RJ into all stages of the criminal justice process and working towards the full integration of RJ into the criminal justice system (para 5.2). Despite its broad conception of RJ and its recognition that RJ processes operate both within and outside of the formal system, therefore, the government envisaged state control of RJ in the same way as the UN Resolution and the Council of Europe instruments. However, its ‘responsibilization’ strategy creates the danger that it may effectively abdicate responsibility for crime by transferring it to the stakeholders in RJ processes (Green, 2007, p. 182; Crawford, 2000, p. 304). Restorative justice initiatives Current RJ policy demonstrates official endorsement of the plethora of RJ initiatives that has developed in England and Wales since the 1990s. This section comprises a detailed assessment of the most prominent of these initiatives. Victim–offender mediation (VOM) Mediation between victims and offenders was the earliest informal process that embodied restorative features. Direct mediation comprises a face-to-face encounter between the victim and the offender in the presence of a trained mediator, who acts as an intermediary but who may not ‘propose or impose a decision on the parties’ (Dignan, 2005, p. 112). ‘Shuttle’ or indirect mediation is an alternative for victims and offenders who do not wish to meet face-to-face (Williams, 2005, p. 79). Although RJ proponents regard it as a less satisfactory option, many victims prefer it as it is seen as less risky (ibid, p. 79). Initiatives employing mediation between victims and offenders began to surface in the UK in the 1980s but became more widespread only in the late 1990s (Goodey, 2005, p. 193). The Home Office played a significant role in the early development of VOM by funding ‘four pilot mediation projects in Cumbria, Coventry, Wolverhampton and Leeds’ (ibid, p. 191). These projects received referrals from both police and courts and focused on young offenders charged with property offences, such as theft and criminal damage (ibid, pp. 191–2). The majority of victims were corporate bodies (ibid, p. 192). Despite the fact that a study of these early projects by Marshall and Merry indicated high levels of victim satisfaction, they are poor indicators of the utility of mediation for

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victims, in view of the low rate of involvement of individual victims (ibid, p. 192). Although VOM became more prominent in the late 1990s, it has not been formally integrated into the criminal justice process (Dignan, 2005, p. 113). Instead, it is conducted by independent agencies, such as Mediation UK (Van Ness and Nolan, 1998, p. 82), or within specific criminal justice agencies, such as the police or the Probation Service (Dignan, 2005, p. 114). The autonomy of the independent agencies has been said to be beneficial to victims, who may feel more comfortable outside the formal system (Home Office, 2003a, para 2.21). However, in the absence of structured state backing, mediation initiatives have suffered from shortages in funding, resource constraints and low referral rates (Dignan, 2005, p. 114). In consequence, they have recently been overtaken by restorative conferencing programmes, which have received more substantial government support (ibid, p. 115). RJ proponents argue that VOM is advantageous to both victims and offenders. Victims are given an opportunity to ask questions about the crime and to express their emotions about its impact. In addition, they may experience empowerment, healing and closure (Elton and Roybal, 2003, p. 52). Studies have shown high levels of victim satisfaction with direct VOM (Dignan, 2005, p. 137). However, the majority of victims in England and Wales engage in indirect rather than direct VOM and studies thus document lower rates of victim satisfaction (ibid, p. 137). Victim Support has stated that victim–offender mediation is ‘fraught with difficulties’ as victims may feel pressurised by courts and/or offenders to participate, or may do so out of a sense of civic duty rather than to achieve personal healing. In addition, it has expressed the view that victims should not be misled by being ‘promised healing if the real primary aims are crime reduction and the re-education of the offender’ (Wright, 2002, p. 657). RJ conferencing RJ conferencing has recently overtaken VOM as one of the primary forms of RJ in England and Wales. It was initially employed on a trial basis by the Thames Valley Police (Johnstone, 2002, p. 115), but has since become a permanent feature of their practice and has also been introduced by other police forces. Although the projects originally applied to young offenders only, they have been extended to include adult offenders (Goodey, 2005, p. 200). At the outset, RJ conferencing was used primarily for non-serious offences, such as theft and other minor property offences, but it is being used with increasing frequency in the case of serious and repeat offenders (Fox et al., 2006, p. 133). RJ conferencing is used by the police in three contexts. First, offenders who would otherwise be tried in court are afforded an opportunity to receive a restorative caution in appropriate cases (Johnstone, 2002, p. 115). The proceedings for a restorative caution are headed by an RJ facilitator (who is usually a

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police officer) and are attended by the offender and his/her family (Dignan, 2005, p. 121). Cautioning for young offenders was reformed and statutorily regulated by the CDA 1998, which has been consolidated in the Powers of Criminal Courts (Sentencing) Act 2000. Young offenders may receive two cautions, the first being a warning or reprimand and the second being a final warning. Offenders who are given final warnings are placed in a ‘rehabilitation programme’, if appropriate, which may require them to apologise to victims or make reparation to victims or the community (Dignan, 2005, p. 110). In addition, s 22 of the Criminal Justice Act 2003 (CJA 2003) provides that a conditional caution, viz a caution that has conditions facilitating the offender’s rehabilitation and/or ensuring that s/he makes reparation for the offence, may be given to adult offenders in appropriate circumstances. In practice, such conditional cautions may be administered through the use of RJ conferencing. The second RJ conferencing context involves the use of restorative conferences, which are headed by an RJ facilitator and attended by the offender and his/her family, but which also include victims and their supporters. The third variant constitutes community conferences, which are attended by representatives of the broader community in addition to the other participants (Dignan, 2005, p. 121). The aims of RJ conferences, as regards offenders, are to confront them with the impact of their behaviour, to enable them to understand the reasons for it, to encourage them to avoid future re-offending, and ‘to persuade them to apologise to their victims and to agree to a reparative action plan’. RJ conferences aim to enable victims to express their emotions about the crime and to meet and, if possible, forgive their offenders (Johnstone, 2002, pp. 115–16). However, whereas direct victims are entitled to material and symbolic reparation (in the form of an apology), indirect victims may receive only symbolic reparation (Young, 2000, pp. 238–9). Restorative conferencing, as employed by the Thames Valley Police, draws on Braithwaite’s theory of reintegrative shaming (Rock, 2004, pp. 301–2). Braithwaite has argued that it is important for offenders to be shamed for their offending behaviour but that, unlike the disintegrative shaming that occurs in court, shaming must be predicated upon the aim of reintegrating offenders into the community. Reintegrative shaming occurs in two stages. The first is the shaming stage, in which the offender is shamed in the presence of the victim and his/her ‘community of care’, viz family members, friends and community representatives (Dignan, 2005, p. 102). However, shaming comprises the expression of disapproval of the offence rather than the offender (Goodey, 2005, p. 198). For Braithwaite, the presence and participation of the victim are conducive to the offender confronting the offence and avoiding ‘techniques of neutralization,’ such as denial of the victim and/or the harm, that are commonly employed by offenders (Dignan, 2005, p. 103). Moreover, being shamed in the presence of the offender’s ‘community of care’ is likely to have a greater effect on the offender than being shamed in front of an impersonal judge (ibid, p. 103).

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The second stage is the reintegrative stage, which occurs after the process of shaming is concluded, and which is aimed at reaching an agreement on an appropriate means of repairing the harm and reintegrating ‘the offender into the law-abiding community’. The presence of the offender’s ‘community of care’ is an important means of attaining such reintegration (ibid, p. 103). It is contended that reintegrative shaming benefits not only the offender but also the victim. Listening to the ‘full story’ concerning the offence gives victims a cathartic release and meeting the offender face-to-face causes their fears to dissipate. In addition, participating in the process empowers them and being afforded an opportunity to forgive the offender facilitates their achievement of ‘closure’ (Johnstone, 2002, p. 117). Operating upon the assumption that RJ conferencing using reintegrative shaming benefits victims, the Thames Valley Police have given victims a more central role in their projects than the earlier RJ processes in England and Wales (Rock, 2004, p. 307). The use of reintegrative shaming in restorative conferences has been criticised as inconsistent with restorative ideals (Morris and Maxwell, 2000, p. 208). It has been argued that placing victims in the position of ‘shamers’ is not conducive to reconciliation and ‘amounts to a form of “victim prostitution” in which victims are effectively “used” in order to bring about certain effects on offenders with a view to reducing the incidence of offending’ (Dignan, 2005, p. 117). In addition, critics have expressed the view that it is inappropriate to expect victims to forgive their offenders and that it may be ‘morally right to withhold forgiveness’ in certain circumstances (Johnstone, 2002, p. 134). Empirical evidence suggests that, despite its purported benefits for victims, RJ conferencing has a low rate of victim participation. Hoyle found that one or more victims attended only 14 per cent of the Thames Valley Police restorative conferences held in the three years after they were introduced (Hoyle, 2002, p. 103). Many victims are accordingly excluded from the restorative process. Reasons for victims’ non-participation include personal factors, such as unwillingness to attend and fear of retaliation, as well as poor implementation of the RJ projects (ibid, pp. 105; 116). In addition, it was found that victims who were unwilling to participate in direct RJ conferencing were given limited opportunities to engage in indirect conferencing (ibid, p. 106). RJ conferencing has accordingly been criticised as too offender-focused (Dignan, 2005, p. 143). Studies also reveal ambivalence in victims’ attitudes to the value of material reparation. Strang and Sherman found that, although RJ conferencing is more likely to result in restitution to victims than traditional court processes, it is not clear that all victims necessarily regard restitution as the appropriate manner of remedying the harm (2003, p. 34). In addition, contentions by RJ proponents that reintegrative shaming in the context of RJ conferences is effective in reducing re-offending are not unequivocally supported by the empirical evidence (Goodey, 2005, p. 198).

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Family Group Conferences (FGCs) FGCs constitute a less state-controlled version of RJ conferencing that were introduced in the UK following their successful implementation in New Zealand (Reimund, 2004/2005, p. 676). Unlike RJ conferencing, their use is limited to a few projects dealing primarily with young offenders (Dignan, 2005, p. 119). Whereas FGCs in New Zealand are used for all offences apart from murder (Rock, 2004, p. 299), they are generally used for less serious offences in England and Wales. However, the Essex Family Group Conference Service employs FGCs for young offenders ‘who commit serious offences, are persistent offenders, or are at high risk of re-offending’ (Home Office, 2003a, para 2.7). An FGC is headed by a conference facilitator and participants include the offender, his/her family and others invited by the family; the victim and his/her supporters and/or family members; and a police representative (Goodey, 2005, p. 195). However, only the victim and offender may actively participate in the process. The other participants merely play a supporting role (Dignan, 2005, pp. 116–17). FGCs are regarded by their proponents as victim-centred, being aimed at meeting victims’ needs. Benefits to victims are said to include making them feel better about the offence, encouraging reconciliation with the offender, bringing about consensual reparative outcomes and reintegrating both victim and offender into their communities (Dignan, 2005, p. 117). A study by Morris and Maxwell of FGCs in New Zealand found that the majority of victims who participated felt better as a consequence and expressed the view that the conference had ‘provided them with a voice in determining appropriate outcomes’ (2000, p. 211). However, approximately 25 per cent of victims felt worse, inter alia, because they did not believe the apologies were genuine and did not receive reparation (ibid, p. 212). Few FGCs result in financial reparation due to the fact that the young offenders and their families have insufficient financial resources (ibid, p. 210). Significantly, FGCs had a relatively low rate of victim participation (Dignan, 2005, p. 140) and those victims who did attend were less satisfied, overall, with the conference outcomes than the professionals and families (Morris and Maxwell, 2000, p. 212). Morris and Maxwell ascribe victim dissatisfaction to poor practice rather than to inherent flaws in FGCs (ibid, p. 217). However, Dignan argues that improvements in practice are unlikely to address victims’ concerns that apologies were not genuine or that reparation was not forthcoming (2005, p. 141). Initiatives employing FGCs in England and Wales have experienced significant difficulties, such as low referral rates, conflict with traditional criminal justice agencies and low rates of victim participation (Dignan, 2005, p. 143). A recent study of FGCs in England found ‘little empirical support to the claim that the needs of victims received primary importance’ (Zernova, 2007, p. 497). Many FGCs proceeded in the absence of the victim and many victims thought

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that the process was primarily for the benefit of offenders (ibid, pp. 497, 498). The study also found that ‘too little attention was attached to material reparation’ and that only two of the restorative conferences surveyed included a discussion of material reparation (ibid, pp. 497–8). In addition, it adverted to the danger that victims may be subjected to pressure to attend FGCs by facilitators appealing to their sense of civic duty (ibid, p. 498). Overall, the study found that claims by proponents that FGCs result in victim empowerment were unsubstantiated and that, in practice, victims’ roles were restricted in order to ensure the retention of state control over offenders (ibid, p. 503). These findings lend credence to critiques that FGCs use victims to achieve the prevention of recidivism rather than victim empowerment (ibid, p. 503) and that they are accordingly offender-focused (Johnstone, 2002, p. 19). Reparation orders Reparation orders constitute the first sentence disposition with restorative elements to receive statutory force. They were introduced by the CDA, which has since been consolidated in the PCCSA (see Chapter 11 for a discussion of the relevant provisions of the PCCSA). The restorative elements of these orders include enabling young offenders to make amends for the harm caused and benefiting victims by giving them an opportunity to meet offenders and to understand why the crime occurred (Goodey, 2005, p. 201). However, the fact that the victims’ views on the form of reparation must be sought before the order is imposed (see Chapter 11) means that victims are not empowered by participating in a meeting with the offender with a view to deciding the form of reparation. VOM ‘may form part of the sanction, rather than part of the process of deciding what the sanction will be’ (Wright, 2002, p. 661). In addition, the fact that reparation orders are imposed by the courts rather than flowing voluntarily from a restorative process means that they cannot be described as fully restorative measures (Dignan, 2005, p. 111) but rather as flowing from an ‘authoritarian’ model of restorative justice (Williams, 2005, p. 67). In practice, implementation problems have undermined the restorativeness of reparation orders for victims. The need for the speedy processing of cases has meant that the majority of victims are not consulted before reparation orders are imposed. In consequence, most reparation orders involve community reparation rather than reparation to victims (ibid, p. 135; see Chapter 11). Furthermore, reparation orders are primarily premised on the policy of diverting young offenders from the criminal justice system in order to reduce reoffending and to ‘limit the costs of future arrests, trials and incarceration to the public purse’. As such, they are offender- rather than victim–focused (Goodey, 2005, pp. 202–3).

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Referral orders Referral orders constitute the second statutory sentencing disposition for young offenders that embodies restorative elements. They were introduced in terms of the YJCEA, which has also been consolidated in the PCCSA. In terms of s 16(1), referral orders apply in instances where the court is dealing with an offender under the age of 18 years in respect of an offence for which the sentence is not fixed by law and the court does not wish to impose a custodial sentence or an absolute discharge. Referral orders may be compulsory or discretionary. The imposition of a referral order is compulsory if the offender has pleaded guilty to the offence with which s/he is charged as well as to ‘any connected offence’ and has not previously been convicted (s 17(1), as amended by the Criminal Justice and Immigration Act 2008 (CJIA)). Referral orders are discretionary if the conditions for compulsory referral are not present, the offender has pleaded guilty to the offence and/or to any connected offence, and one of the following circumstances apply:

• • •

the offender has not previously been convicted; the offender has once previously ‘been dealt with’ by the court for another offence but has not been given a referral order, or the offender has previously ‘been dealt with’ more than once by the court for another offence but has only been given a referral order once, a referral order is suitable and the court is of the view that ‘exceptional circumstances’ justify the imposition of a referral order (s 17(2), as inserted by the CJIA).’

A referral order must require the young offender to attend meetings of a youth offender panel comprising at least one member of the Youth Offending Team (s 18(1), read with s 21(3)). The objective of the panel is to reach agreement with the young offender concerning a programme of behaviour aimed at preventing re-offending (s 23(1)). This programme may include provision for, inter alia, reparation, mediation or community work (s 23(2)). The terms of this agreement constitute a youth offender contract, which may not be less than three months or more than 12 months in duration (s 23(6), read with s 18(1)). Meetings of the panel must be attended by the young offender and his/her parent, guardian or other ‘appropriate person’ if s/he is under the age of 16 years. Such ‘appropriate persons’ may attend if the young offender is older than 16 years (s 20). In addition, the young offender may be accompanied by a support person (s 22(3)). Victims and their supporters may also attend (ss 22(4) and (5)). If, at the final meeting, the panel concludes that the young offender has satisfactorily complied with the youth offender contract, the referral order is discharged (s 27). If the contract has not been satisfactorily fulfilled, or has been breached, the young offender must be referred back to court (s 27). The government has emphasised the centrality of victims to the referral order process. It is said to benefit victims by providing them with a forum to express

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their views, to question the offender in order to understand why s/he committed the offence and to receive an acknowledgement of the harm they have suffered. In addition, victims may receive material and/or emotional reparation (Dignan, 2005, pp. 148–9). In 2000 the government piloted referral orders in 11 areas (Crawford and Burden, 2005, p. 8). Evaluation of these pilots found high levels of victim satisfaction concerning the standards of procedural justice in panels, but dissatisfaction regarding the limits of victim participation (ibid, p. 8). These limits were evident in some of the pilots, where victims who attended the panel were required to leave after the issue of reparation had been discussed but before the programme of activities for the young offender was determined (Crawford, 2006, p. 137). It was also found that the rate of victim attendance was very low – victims attended panel meetings in only 13 per cent of cases (Crawford and Burden, 2005, p. 8). Reasons for the low rate of victim attendance included problems in contacting victims, resource limitations and time constraints (Goodey, 2005, p. 204). A subsequent study found a similarly low rate of victim participation (Crawford and Burden, 2005, p. 37). Reasons for non-attendance included the limited time scale for holding panel meetings, which were often held at inconvenient times, as well as victims’ fear of reprisals and unwillingness to meet the offender (ibid, pp. 38–9). Although victims who had attended panels expressed positive sentiments concerning being ‘given a voice’ and attaining closure, many victims were dissatisfied with the amount of follow-up information received and the lack of regard paid to their views (ibid, pp. 47, 52–3). It was also found that one of the reasons for low rates of victim attendance was the tension between community and victim participation. Community involvement may undermine the centrality of the victim, ‘particularly if the community is thought capable of injecting a victim perspective by virtue of its own status and role as indirect or secondary victim of a crime’ and may be used by youth justice agencies which are resistant to victim participation as a surrogate for victim attendance (Dignan, 2005, p. 152). This problem is compounded by the tendency of youth offender panels to agree on reparation to the community rather than reparation to individual victims (Crawford, 2006, p. 137). Low victim attendance, limits on victim participation and insufficient reparation to individual victims impede the restorativeness of referral orders and open them to criticism as being offender-focused. In addition, they are embedded in a coercive criminal justice framework that ‘offends cherished restorative ideals of voluntariness’ (Crawford and Burden, 2005, p. 14).

Effectiveness of restorative justice for victims The preceding section has highlighted the practical shortcomings of specific RJ processes from the perspective of victims. This section considers the more

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theoretical question of whether the RJ paradigm is itself incompatible with effective victim empowerment. Proponents of RJ have experienced difficulties in reconciling the restorative value of voluntary participation with the reality that such participation is frequently not forthcoming. Some RJ proponents regard voluntary participation as essential (see, e.g., Wright, 2002, p. 659) and therefore contend that processes with coercive elements cannot be characterised as restorative. However, most proponents permit the use of coercive measures to reinforce restorative values (see, e.g., Walgrave, 2007, p. 565; Obold-Eschleman, 2004, p. 599). Walgrave, for instance, argues for the use of ‘restorative coercion’ because the voluntary restorative process has limits which necessitate the use of force, according to due process, by the formal criminal justice system (2000, p. 272). From a victim’s perspective, the ‘specter of punishment in the background’ (Braithwaite, 2002, quoted in Williams, 2005, p. 66) may serve to undermine the credibility of the RJ process. A study of FGCs in England revealed that many offenders believed that they were required to participate (Zernova, 2007, p. 500). Apologies and the making of amends by offenders who participate in the belief that they are obliged to do so, or in order to avoid judicial sanctions, are unlikely to be perceived as restorative by victims. Another study has demonstrated that reparation made with the threat of judicial proceedings in the background is perceived by victims as unconvincing (Crawford, 2000, p. 300). The lack of credibility of processes employing ‘restorative coercion’ may lead to victims choosing not to participate or to participating out of a sense of civic duty rather than to achieve personal healing or closure (see above). Such processes may therefore cause secondary victimisation rather than victim empowerment. In fact, Braithwaite has explicitly stated that ‘a radical vision of victim empowerment’ is inconsistent with RJ (Braithwaite, 2002, p. 160). A further concern with RJ relates to the informality of RJ processes, which may lack the safeguards of the formal criminal process. Admittedly, integrationists, such as Walgrave, as well as Recommendation (99) 19 and the UN Convention require due process safeguards, including legal assistance, to prevent abuses in restorative processes (see above). It is nonetheless difficult to ensure that such safeguards are adhered to in practice, particularly in view of the fact that the process is overseen by non-legal facilitators. Furthermore, the protections afforded victims, particularly vulnerable victims, in the formal criminal process by procedural rules, such as those permitting special measures and prohibiting cross-examination by the defendant in person (see Chapter 9), are unavailable in restorative processes. Victims may therefore experience secondary victimisation that is inherent in the informality of the process itself. Apart from the above concerns, which apply to victims generally, additional concerns arise from the application of RJ to victims from unequal social groups. Although RJ regards victims as one of the central stakeholders in RJ processes, it uses a neutral concept of victimhood that obscures structural inequalities based on, inter alia, gender, race, sexuality and age (Green, 2007,

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p. 181). The failure to recognise these structural inequalities may threaten the ‘protection and promotion of [human] rights in restorative justice programmes’, which may prevent the empowerment of victims from unequal social groups (Skelton and Sekhonyane, 2007, p. 585). RJ also valorises the notion of ‘community’, overlooking the reality that many communities are characterised by social exclusion, coercion and inequalities of power (Crawford, 2000, p. 291). The ‘moral authoritarianism’ upon which it is implicitly based assumes community consensus and resists a critical inquiry that highlights the existence of unequal social relations (Williams, 2005, p. 63). The detrimental impact of these concepts of victimhood and community is brought sharply into focus in the case of victims of gender-based violence and ‘hate crime’ against minority ethnic and LGBT communities (see Chapters 4, 5, 6 and 13). Several proponents of RJ advocate the use of RJ measures for genderbased violence. They take the view that victims will be empowered by being ‘given a voice’, that their accounts of the crime ‘can be validated, acknowledging that [they] are not to blame’, and that the informal environment of RJ processes is less threatening to victims, who experience the formal criminal process as traumatic (Daly, 2006, p. 338). Such an approach overlooks certain fundamental inconsistencies between RJ and the empowerment of victims of gender-based violence. In view of the patriarchy that prevails in many communities, the centrality of community involvement may inure to the detriment of victims by trivialising domestic violence and sexual assault (Johnstone, 2002, pp. 29–30). In addition, particularly in cases where the victim and the offender are known to each other, RJ may expose victims to the risk of further violence (Daly and Stubbs, 2007, p. 159). Furthermore, the power imbalances that characterise gender-based violence may permeate the RJ process on account of the norm of neutrality on the part of facilitators (Bannenberg and Rössner, 2003, p. 72). The use of apologies is particularly problematic in domestic violence cases, as they frequently form part of the domestic violence cycle (Daly and Stubbs, 2007, p. 160; see Chapter 4). Forgiveness may weaken rather than empower victims in cases of sexual assault (ibid, pp. 160–1). The adoption of RJ processes for ‘hate crimes’ is fraught with similar difficulties. However, some scholars have advocated their use in such circumstances. Hudson contends that, in view of the relative dearth of convictions for ‘hate crime’, RJ may signify its wrongfulness more persuasively than the formal criminal justice system. Victims are enabled to ‘tell their stories’ directly, which facilitates comprehension by the offender of the harm they have caused. In addition, offenders may be reintegrated into the community after having been shamed, rather than facing stigmatisation and exclusion (Hudson, 2006, p. 277). This perspective fails to consider the dangers of RJ processes for victims of racially motivated and homophobic crime. As is the case with regard to genderbased violence, community participation carries the risk of injustice to victims. Racially motivated and homophobic offences draw on prejudices that may be

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shared by the relevant community (Dignan, 2005, p. 171; see Chapter 5). They are also characterised by power imbalances between victims and offenders that may fail to be negated in RJ processes, due to the relative lack of procedural safeguards and the presence of an impartial facilitator. Furthermore, in view of the fact that such crimes not only harm direct victims but also constitute an assault on the social group whose characteristic is targeted (see Chapter 5), apologies to individual victims do not restore the whole social relationship. In England and Wales, RJ processes are fortunately generally regarded as unsuitable for domestic violence, sexual assault and racially motivated or homophobic crime and most schemes accordingly do not apply to such cases. However, domestic violence is included in the Thames Valley Police RJ conferencing programmes (Dignan, 2005, p. 170). The limited use of RJ in these circumstances is to be welcomed. It is to be hoped that the UK will not follow the recent trend in jurisdictions such as the US, Australia and New Zealand to advocate and/or implement RJ processes for gender-based violence and ‘hate crime’ (Daly and Stubbs, 2007, p. 160).

Conclusion This chapter has evaluated the RJ paradigm, as well as the relevant provisions of the Council of Europe and the United Nations. In addition, it has considered government policy and RJ initiatives in the UK. Apart from emphasising the practical shortcomings of these initiatives from the perspective of victims, it has also pointed to several concerns with the paradigm of RJ itself, particularly as regards its use in cases involving victims from unequal social groups. In light of these shortcomings and concerns, it is contended that, provided that the formal criminal process is transformed in the manner that is advocated in this book, it contains greater possibilities than RJ for the effective empowerment of victims. The introduction of statutory victims’ rights (see Chapter 7), as well as the use of anti-discrimination law for victims from unequal social groups (see Chapter 13), will contribute to the reduction of secondary victimisation throughout the criminal process. Furthermore, the introduction of the auxiliary prosecution procedure for serious offences, coupled with the use of victims’ lawyers in less serious offences (see Chapter 10), will empower victims during the court process. Moreover, training programmes designed to defuse prejudices and avoid power imbalances are more easily able to be implemented in the criminal justice system than in the community (see Chapter 13). Although the Framework Decision requires the promotion of mediation, it also requires the adjustment of the criminal process to enhance the position of victims. Rather than extending the restorative measures that already exist, English law and policy ought, it is submitted, to focus on the transformation of the formal criminal process.

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Questions for further discussion

• • • •

Are ‘encounters’ between victims, offenders and the community enough to ensure restorative justice or must they also have ‘reparative’ outcomes? Should the restorative process be fully voluntary or is there room for ‘restorative coercion’? What are the advantages and disadvantages of restorative processes for victims? Is a restorative process more conducive to the empowerment of victims than the formal criminal process?

Chapter 13

Rights of victims from socially disadvantaged groups

Introduction Against the backdrop of the UK’s international and European human rights commitments, this chapter evaluates the responses of the government and criminal justice agencies to crimes perpetrated against victims on the grounds of gender, race, religion, sexual orientation and age. In particular, it assesses the responses to victims’ experiences of rape and domestic violence (see Chapter 4), racially and religiously motivated victimisation (see Chapter 5), homophobic and transphobic victimisation and elder abuse (see Chapter 6). In addition, it analyses the extent to which English law permits aggrieved victims to institute actions against criminal justice agencies for failing to investigate, prosecute and punish such crimes effectively. To this end, it surveys the state duties that have recently been imposed on criminal justice agencies in terms of the Race Relations (Amendment) Act 2000 and the Equality Act 2006. Lastly, drawing on ECtHR jurisprudence, it assesses the potential of the Human Rights Act 1998 to provide remedies for aggrieved victims.

Gender-based victimisation This section addresses state responses to rape and domestic violence in light of the state’s obligations in terms of international human rights law and Council of Europe recommendations. It contends that, whereas English law and policy generally comply with the provisions of these instruments, they fail to make adequate provision for the experiences of minority ethnic women. Human rights obligations The UK is bound by the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (the Women’s Convention), which regulates gender discrimination generally. Although it does not refer to gender-based violence expressly, the Committee on the Elimination of Discrimination Against Women (CEDAW) has taken the view that gender-based violence is included

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within the definition of discrimination against women in article 1 (CEDAW, 1992). The Women’s Convention imposes several duties on States Parties. In terms of article 3, for instance, states are required to take ‘all appropriate measures, including legislation’ to enable women to develop and advance fully, in order that they may exercise and enjoy their human rights and freedoms equally with men. They must not engage in any discriminatory ‘act or practice’, ensuring that public bodies also refrain from such discriminatory conduct (article 2(d)). They must also adopt ‘all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise’ (article 2(e)). Furthermore, they are required to take suitable steps, including the enactment of legislation, to alter or abolish discriminatory ‘laws, regulations, customs and practices’ (article 2(f)). Read cumulatively, these provisions impose obligations on States Parties to refrain from gender discrimination and prevent such discrimination by public bodies as well as private persons (Wolhuter, 1998, p. 447). As genderbased violence is included in the definition of gender discrimination, these duties also extend to such violence. CEDAW has confirmed that States Parties have a positive duty to prevent, investigate and punish acts of gender-based violence by private persons (CEDAW, 1992). The UK is also signatory to the Declaration on the Elimination of Violence Against Women 1994 (the Women’s Declaration), which, unlike the Women’s Convention, is not binding. Article 1 provides that ‘violence against women’ means gender-based violence, including threats thereof or coercion, ‘whether occurring in public or in private life’. States Parties must adopt ‘a policy of eliminating violence’ and must use ‘due diligence to prevent, investigate and . . . punish’ gender-based violence committed by the state or private individuals (article 4). Like the Women’s Convention, therefore, the Women’s Declaration envisages state liability for acts of gender-based violence by public bodies as well as private persons, where the due diligence standard has not been met. The Council of Europe Recommendation Rec (2002) 5 on the Protection of Women Against Violence, albeit not binding, nonetheless contains comprehensive provisions for the protection and empowerment of victims. It provides that states must assist and support victims and ensure that services are provided to immigrant women (articles 23 and 24). In addition, they must ensure that police treat victims with respect and dignity, deal with complaints in confidence, and provide female police officers wherever possible (article 29). Significantly, article 33 provides that states must make certain that victims do not ‘suffer secondary (re)victimisation or any gender-insensitive treatment by the police, health and social personnel [and] judiciary personnel’. As regards the court process, they are required, inter alia, to devise special conditions for victims’ testimony that avoid repetition and decrease the trauma of the proceedings (article 42). They must also prevent ‘unwarranted and/or humiliating questioning’ of victims and ensure the existence of measures to protect victims against threats and revenge (articles 43 and 44; see Chapter 9 for a discussion of similar

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provisions for the protection of victims in terms of Recommendation R (97) 13). Importantly, states must protect immigrant victims of domestic violence by considering giving them an independent right of residence to enable them to leave the abuser (article 59). Comprehensive state duties for the prevention, investigation and punishment of gender-based violence as well as the empowerment and protection of victims accordingly form the backdrop to the legal and policy responses to genderbased violence in the UK. The following analysis indicates that the UK has, by and large, complied with these duties, regardless of whether they emanate from binding or non-binding instruments. Rape The government’s approach to rape is premised on the need to discharge its obligations to prevent, investigate and punish rape, on the one hand, and to support, assist and empower victims, preventing secondary victimisation, on the other. The high rate of attrition in rape cases (see Chapter 4) engages the government’s duty to punish rape. However, as fear of secondary victimisation causes many victims not to report or to refuse to testify (see Chapter 4), the attrition rate also engages its duty to support, assist and empower victims. Government rape policy is accordingly premised on a multi-pronged approach that seeks to reduce the rate of attrition and increase rape convictions by eliminating secondary victimisation and improving the support and treatment of victims. Police and forensic services The police have attempted to encourage the reporting of rapes and the improvement of rape investigations by resorting to several strategies. Some police forces have dedicated sexual offence units that specialise in rape cases. The Metropolitan Police Service, for example, operates Project Sapphire – a unit of police officers in each borough within its jurisdiction who are specifically trained to investigate rape and to provide rape victims with assistance and support (Metropolitan Police Service Project Sapphire). In addition, many forces employ specially trained rape chaperones to assist victims throughout the investigation (HMCPSI/HMIC, 2002, p. 24; Temkin, 2002, p. 274). The HMCPSI/HMIC recommended a review of police training on the dynamics of rape in order to ensure enhanced standards and the provision of appropriate services to victims in all police forces (HMCPSI/HMIC, 2002, p. 24), which the government has endorsed (Home Office, 2002a, p. 12). Special Sexual Assault Referral Centres (SARCs) have also been established in many police areas to provide a comfortable and non-threatening environment for rape victims to undergo forensic examinations, medical treatment and counselling. SARCs are run by a partnership between the police, the health

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authorities and other statutory and non-statutory agencies, thus representing a multi-agency response to rape (Association of Chief Police Officers, undated, pp. 3, 6). Wherever possible, SARCs are staffed by female forensic medical examiners, as well as nurses, counsellors or psychologists (ibid, pp. 12–13). The government has recently announced that it plans to introduce Independent Sexual Violence Advisors at SARCs to work with victims throughout the pretrial and trial process as well as thereafter (Ellison, 2007, p. 708). All staff in SARCs must receive specialist training appropriate to their respective capacities. HMCPSI/HMIC noted that many forensic medical examiners receive only general training and recommended, with government approval (Home Office, 2002a, p. 12), that they must receive training specific to rape cases (HMCPSI/ HMIC, 2002, p. 7). Crown Prosecution Service The Crown Prosecution Service has evinced a commitment to pursue rape prosecutions more vigorously and to respond more sensitively to rape victims. It has introduced specialist prosecutors in each area who collaborate with police to ensure that all relevant evidence is gathered and who assume responsibility for a particular case from the stage of advice until the end of the proceedings (CPS, undated, Rape Policy, p. 6). These prosecutors must receive training in the dynamics of rape (HMCPSI/HMIC, 2002, p. 12; Home Office, 2002a, p. 13). The CPS has also undertaken to instruct barristers with skills appropriate to rape cases and to encourage them to meet victims before they testify (CPS, undated, Rape Policy, p. 17). In order to reduce the attrition rate, the CPS has adopted the stance that, provided the test of evidential sufficiency is satisfied, a rape prosecution will almost always be in the public interest (ibid, p. 8). If it decides not to prosecute or to drop or alter the charges, the Code of Practice for Victims of Crime 2005 requires it to offer to meet victims of sexual offences, unless it adopts the view that the circumstances are such that no meeting should take place (see Chapter 9). If the CPS decides to prosecute and the victim withdraws her complaint or is unwilling to testify, it will consider all other evidence as well as the victim’s interests and may pursue the prosecution without the victim’s involvement, if possible (ibid, p. 10). If it believes the victim’s testimony is necessary, it will consider the prospect of a court admitting her statement under the hearsay exception (see Chapter 9), which will free her from having to testify. The CPS will compel the victim to testify only as a last resort and the decision to do so ‘will only be taken by a specialist prosecutor after consultation with the police’ (ibid, p. 12). Although the CPS policy is accordingly strongly pro-prosecution, it attempts to avoid compelling victims to testify as far as possible. However, whether it is possible to carry through this commitment to the victim’s interests in practice depends on the strength of the other evidence, particularly the

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forensic evidence. In the absence of such evidence, victims will either be compelled to testify or prosecutions will be dropped, thereby increasing the attrition rate. It has been settled practice for many years that prosecutors may not interview witnesses prior to the trial due to the prohibition of witness coaching (Ellison, 2007, p. 699). However, the Attorney General has recently advocated the use of pre-trial interviews with witnesses to enable the CPS to facilitate its prosecutorial decisions by gauging the strength of the evidence (Ellison, 2007, p. 702). A Code of Practice was devised to regulate pilot projects using such pre-trial interviews (DPP, 2005; Ellison, 2007, p. 702). However, they will be used only for vulnerable witnesses in ‘exceptional cases’ (DPP, 2005, para 9.2) and the likelihood of the CPS interviewing rape victims is accordingly slim. Court process It was contended in Chapter 9 that, although procedures to reduce secondary victimisation in rape trials, such as special measures, the prohibition of crossexamination by the defendant in person, and restrictions on the admissibility of sexual history evidence, have improved victims’ experiences of the trial process, they are not sufficient, in and of themselves, to eliminate secondary victimisation. Chapter 10 has argued that the use of auxiliary prosecutors or victims’ lawyers will empower rape victims most effectively. Without such reforms secondary victimisation will continue to exist and victims will remain reluctant to testify, thereby increasing the attrition rate. The possible reliance on rape myths and gender stereotypes by the jury is a further source of secondary victimisation, which may affect the conviction rate. Section 8 of the Contempt of Court Act 1981 precludes research on jury deliberations and it is therefore not possible to ascertain whether juries do rely on such myths and stereotypes. However, Finch and Munro found that gender stereotypes influenced the decision making of a simulated jury (Finch and Munro, 2005, pp. 35–6; see Chapter 4). The HMCPSI/HMIC recommended that prosecutors receive training to ensure that they present evidence and information to the jury in a manner that circumvents these myths and stereotypes (HMCPSI/HMIC, 2002, p. 12). The judiciary should also receive training on the dynamics of rape to prevent the influence of rape myths and gender stereotypes. The training programmes conducted by the Judicial Studies Board include a component on violence against women and sexual offences (Equal Treatment Advisory Committee, 2004). An additional area of possible secondary victimisation has recently been the subject of proposals for reform. Many rape victims experience post-traumatic stress disorder in the aftermath of the rape (see Chapter 4). Judges and jurors who do not understand this disorder may perceive ‘puzzling’ behaviour, such as late reporting, omissions in testimony and inability to answer questions, as indicative of fabrication or poor credibility (Criminal Justice System, 2006,

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p. 16). In order to circumvent such responses by judges and jurors, the government is proposing to introduce legislation to permit expert evidence on such PTSD or ‘Rape Trauma Syndrome’ (Criminal Justice System, 2006, pp. 19–20). It appears from the above analysis that, although significant improvements have been made to criminal justice responses to rape victims, fear of secondary victimisation, particularly during the trial process, continues to contribute to a high attrition rate. The government accordingly has some way to go to ensure that its international obligation to prevent and punish rape is effectively discharged in practice. Domestic violence The UK has striven to comply with its international obligation to prevent, investigate and punish domestic violence by introducing tougher sanctions and pro-arrest policies. In order to comply with its obligations to empower, support and assist victims and prevent secondary victimisation, it has introduced specialised Domestic Violence Units (DVUs) in police forces and piloted specialised domestic violence courts. In addition, it has implemented special measures to assist vulnerable witnesses, including domestic violence victims, to testify (see Chapter 9). Domestic violence as ‘real’ crime The Domestic Violence, Crime and Victims Act 2004 (DVCVA) heralded a tougher approach to domestic violence. A breach of a non-molestation order, which was previously contempt of court (Burton, 2003, p. 302), is made a criminal offence (s 1) and may be prosecuted regardless of the victim’s consent (Bessant, 2005, 16). Section 10 makes common assault an arrestable offence in terms of the Police and Criminal Evidence Act 1984, relieving the police of the need for a warrant to arrest a domestic violence perpetrator. In terms of s 12, a court may impose a restraining order, not only in the case of convictions for any offence (Bessant, 2005, pp. 25–6) but also in the case of an acquittal, if it deems it necessary in order ‘to protect a person from harassment by the defendant’ (s 12(5)). Section 5 introduces a new offence of causing or allowing the death of a child or a vulnerable adult. The offence is designed to apply to situations where a charge of murder or manslaughter cannot be sustained, and hence to facilitate the prosecution of deaths caused in domestic violence circumstances. The tougher stance to domestic violence encompassed in the DVCVA is complemented by police and prosecutorial policies favouring the investigation and prosecution of domestic violence. A pro-arrest policy has been introduced in all police forces (Home Office, 2003b, p. 14), encouraging police to arrest the perpetrator even if the victim does not want him/her to be arrested. Hoyle and Sanders contend that pro-arrest policies are premised on the assumption that

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victims are unable to make effective choices and that police and policymakers are able to act in their best interests. Such policies deny victims agency (2000, p. 19). They argue that victims ought to be ‘empowered to make the choices which are most likely to lead to an end to the violence’ and that pro-arrest policies do not necessarily lead to this result (ibid, p. 30; see Chapter 4). However, pro-arrest policies are nonetheless a significant improvement on the erstwhile police reluctance to intervene in domestic disputes. The CPS has demonstrated commitment to pursue prosecutions even where victims are reluctant or unwilling to testify or withdraw their complaints (CPS, 2001). In order to avoid the need to rely solely on the victim’s evidence, the CPS will actively consider other available evidence (CPS, 2001, para 4.2). However, Ellison argues that research shows that, due to inadequate police investigations, the CPS will have enough evidence to prosecute without a victim’s testimony only in rare cases (Ellison, 2003, p. 765). Although some police forces have tried to improve their techniques of collecting evidence and have introduced innovative measures, such as the use of cameras to document injuries sustained by victims (see Chapter 4), most forces still gather insufficient evidence (Ellison, pp. 765–6). The victim’s statement is thus the only evidence in most domestic violence cases (Ellison, 2002, pp. 836–7), precluding the possibility of a prosecution without the victim testifying. The CPS will also consider the chances of the court admitting the victim’s statement in terms of the hearsay exception (CPS, 2001, paras 4.16–4.17; see Chapter 9). However, it emphasises the difficulty of convincing a court to admit such evidence where the victim is the only witness (ibid, para 4.20). This difficulty has resulted in the hearsay exception being employed in very few domestic violence cases (Ellison, 2003, p. 766; see Chapter 9). Although the CPS is willing to compel victims to testify in serious domestic violence cases (CPS, 2001, paras 4.12–4.15), it is reluctant to do so in practice (Ellison, 2002, p. 834). In order to encourage victims to testify, para 7 of the Victims’ Code requires the CPS to ensure the existence of procedures to assist prosecutors to decide whether or not to apply for a special measure direction in, inter alia, domestic violence cases (see Chapter 9). However, unlike rape victims, domestic violence victims are not automatically entitled to special measures. If a court refuses to order special measures, there is little incentive for a reluctant victim to testify. The government’s crackdown on domestic violence is therefore unlikely to reduce significantly the rate of victim withdrawals of domestic violence complaints. However, as Hoyle and Sanders point out, domestic violence interventions should be aimed at ending the violence rather than rigidly pursuing prosecution (Hoyle and Sanders, 2000, p. 32) and it may well be that multiagency interventions not involving prosecution may better serve this aim in cases where victims do not wish to pursue charges.

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Support and assistance to victims Most police forces have introduced Domestic Violence Units to provide victims with support and assistance, as well as to improve the investigation of domestic violence (Home Office, 2003b, p. 25). The Thames Valley Police DVU, for example, is staffed by specialised Domestic Violence Officers whose tasks include ensuring that victims are provided with a victim-centred, professional service that caters for their needs, where possible (Domestic Violence Forum, Royal Borough of Windsor and Maidenhead). The DVU contacts all victims either by telephone or through the post, and will meet them personally if necessary. Should the victim report the incident, it ‘will be formally recorded and investigated’ and the DVU will work with the CPS regarding prosecution (ibid). Hoyle and Sanders found that the emphasis of Domestic Violence Officers varies from unit to unit. Whereas some officers focused on prosecution, others prioritised the provision of support (2000, p. 28). Hoyle and Sanders argue that some officers play a significant role in empowering victims to make choices with a view to bringing the violence to an end (2000, p. 30). In order to generate a co-ordinated and specialised service to domestic violence victims in the court process, Domestic Violence Courts have been established in certain areas, including Leeds, Wolverhampton and West London (Home Office, 2003b, pp. 28–9). As cases are dealt with in a separate court, support and assistance to victims are more effective (Eley, 2005, p. 114) and courts are more able to respond to complex cases and to order perpetrators to be ‘fast-tracked’ to rehabilitation programmes for domestic violence perpetrators (ibid, p. 115). Furthermore, they are able to sentence domestic violence offenders more consistently than the ordinary courts (ibid, p. 114). However, Dinovitzer and Dawson found that the importance of keeping families together influences sentencing in domestic violence courts in the same way as the ordinary courts. The authors show that, although courts are more willing to impose custody on offenders who are still in a relationship with the victim in the case of serious injuries, they ‘appear reluctant to break apart these families for too long, with offenders in intact relationships receiving shorter sentences than offenders estranged from their families, even controlling for the presence of injury’ (2007, p. 666). This tendency points to the need for domestic violence training for magistrates to enable them to consider victim safety rather than familial ideology in making sentencing decisions. The above initiatives to support and assist victims are complemented by an emphasis on the importance of multi-agency strategies to domestic violence. For instance, many Crime and Disorder Reduction Partnerships established in terms of the Crime and Disorder Act 1998, as well as Community Safety Units (CSUs), include domestic violence within their remit (Home Office, 2003b, p. 12; Hall, 2005, p. 173). In addition, diverse community partnerships exist in different areas. For example, the West Midlands Domestic Violence Initiative Partnership Project was established in 1998 to provide a multi-agency response

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to domestic violence. Partners include ‘the Children’s Society, Women’s Aid, probation, West Midlands Police and the magistrates’ court’ (Gilchrist and Blissett, 2002, p. 350). Hoyle and Sanders emphasise the importance of multiagency work as an adjunct to a pro-arrest policy in order to facilitate an effective response to domestic violence (2000, p. 30). The success of government policy to facilitate the empowerment, support and assistance of victims requires that police, prosecutors, magistrates and other criminal justice personnel, as well as participants in multi-agency initiatives, receive training in the dynamics of domestic violence. The government has evinced a commitment to national training of all criminal justice agencies. All police forces and prosecutors receive training in domestic violence (see Home Office, 2003b, pp. 25, 27). The Judicial Studies Board conducts training for the judiciary and magistrates (ibid, p. 27). The above analysis indicates that current domestic violence law and policy complies with the UK’s international and European obligations to prevent and investigate domestic violence and to empower and support victims. Although the rate of prosecution and, hence, punishment of perpetrators remains low, it has rightly been contended that prosecution is not necessarily always in the victim’s interests, particularly where s/he is unwilling to testify (see Chapter 4). In these circumstances, the state’s duty to respect the victim’s right to selfdetermination ought arguably to outweigh its duty to pursue an inflexible prosecution policy. Minority ethnic victims However, domestic violence law and policy fail to address the lived experiences of minority ethnic victims of domestic violence. The lives of minority ethnic women, in particular, are embedded within a complex matrix of social relations in which cultural conceptions of their appropriate roles within minority ethnic communities and racial exclusion by the dominant white community combine to problematise the reporting of domestic violence (see Chapters 2 and 4). They therefore tend to report their experiences of domestic violence less frequently than their white counterparts (Home Office, 2003b, p. 55). Although the government has recognised that minority ethnic victims may be reluctant to report because of cultural notions of shame (Home Office, 2003, p. 55), it has not expressly considered the effect of fear of institutional racism on reporting levels in the context of domestic violence. The CPS has adverted to the impact of racism on the reluctance to report (CPS, 2001, para 1.10), but has failed to formulate a policy to address it. A further institutional barrier to reporting exists in the case of immigrant victims of domestic violence. Women who enter the UK due to marriage to a British citizen or permanent resident must remain in the relationship for at least two years in order to avoid the threat of deportation (Chana, 2005, p. 25). Until recently, domestic violence victims who left the abuser were therefore

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vulnerable to deportation. However, the government has introduced a concession, in terms of which a victim who proves that she left her partner due to domestic violence is eligible for settlement in the UK (Home Office, 2003b, p. 45). Although this concession has the potential to improve significantly the position of minority ethnic victims, it does not go far enough. The government is unwilling to permit such victims recourse to public funds while their application for permission to remain indefinitely is being considered (ibid, p. 45). Abused women who leave the abuser thus face the prospect of being destitute until the immigration authorities finalise their immigration status. The Home Office has evinced a commitment to ensuring that these victims have access to refuges pending the decision of the immigration authorities (ibid, p. 46). Nevertheless, the prospect of a refuge as their only recourse to safety may be too bleak to encourage victims to leave abusers. Minority ethnic victims thus experience a dual disadvantage. Neither domestic violence law and policy, nor race relations law and policy (see below), address their lived realities of domestic violence. They are accordingly subject to intersectional discrimination that causes them to fall through the cracks of both anti-sexist and anti-racist legal interventions (Crenshaw, 1993a, p. 385; see Chapter 2 and below).

Racially and religiously motivated victimisation This section critically evaluates government responses to racially and religiously motivated crime against the backdrop of the UK’s obligations in terms of international human rights law and Council of Europe instruments. It contends that, although the UK has recently made concerted efforts to prevent and punish such crime and to reduce secondary victimisation by criminal justice agencies, discriminatory attitudes and practices detract from the effectiveness of these efforts. Human rights obligations The UK is bound by the Convention on the Elimination of All Forms of Racial Discrimination 1966 (the Race Convention), which imposes duties on States Parties to prevent and punish racial victimisation. They must criminalise and punish, inter alia, incitement to racial discrimination and all acts of racial violence (article 4(a)). In addition, they are required to guarantee equality before the law ‘without distinction as to race, colour, or national or ethnic origin’ regarding ‘[t]he right to security of person and protection by the State against violence or bodily harm’ by state officials or individual bodies (article 5(b)). Furthermore, they must ensure that everyone has ‘effective protection and remedies’ as well as the right to ‘just and adequate reparation or satisfaction’ for acts of racial discrimination. The Committee on the Elimination of Racial Discrimination (CERD), established in terms of article 8 of the Race Convention, has recommended that

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States Parties enact legislation creating sentence enhancement for racially motivated offences (CERD, 2005, para I.I.B.1). It has emphasised that criminal justice agencies must respond satisfactorily to reports of racist offending and that failure by the police to ‘to accept a complaint involving an act of racism should lead to disciplinary or penal sanctions’ (ibid, para II.2). It has also recommended that states must stress to the prosecution service that it is important to institute prosecutions for racist acts (ibid, para II.3.1). Victims must be assisted in court by being given legal aid, information about the progress of the case and protection against intimidation (ibid, para II.3.3). Criminal justice agencies must be trained to respect human rights, to be tolerant, to understand inter-racial matters and to be sensitive to ‘intercultural relations’ (ibid, para I.2.2). CERD has expressed concern about the existence of racist violence and harassment and institutional police racism in the UK and has encouraged the government to ensure that its policies to eradicate these phenomena are effectively implemented (CERD, 2001). It has also expressed concern about reports of Islamophobia in the UK in the aftermath of September 11 and has urged the criminalisation of incitement to religious hatred (CERD, 2003). Although CERD recommendations and opinions are not binding, they have a persuasive influence on the development of state law and policy. Council of Europe instruments and European Union law also embody provisions protecting minorities and outlawing racism. The Council of Europe Framework Convention for the Protection of National Minorities 1995 enshrines the principle of equality before the law and freedom from discrimination for national minorities (article 4) and requires states to protect such minorities from ‘threats or acts of discrimination, hostility or violence’ due to ‘their ethnic, cultural, linguistic or religious identity’ (article 6.2). The Council of the European Union has adopted a Framework Decision on Combating Racism and Xenophobia, which, although not yet in operation (Goodey, 2007, pp. 425–6), will bind Member States upon its entry into force. It requires states to criminalise and punish intentional conduct that publicly incites discrimination, violence or hatred on the basis of ‘race, colour, religion, descent or national or ethnic origin’ (article 1.1.(a)). However, states may exclude liability for such incitement on the basis of religion, where the reference to religion is not a pretext for a ‘reference to race, colour, descent or national or ethnic origin’ (article 8.1.(a)). States may thus avoid criminalising incitement to anti-Muslim hatred or violence that is not ‘a pretext’ for anti-Asian or anti-Arab sentiment. This may exacerbate Islamophobic victimisation, particularly in light of the increasing tendency to construe Islam as ‘a fiercely politicized identity readily associated with the menace of global terrorism’ (Chakraborti, 2007, p. 111). Fortunately, the UK has not exempted incitement to such ‘pure’ religious hatred from the Racial and Religious Hatred Act 2006 (RRHA; see below). These European provisions are supplemented by the work of the European Commission Against Racism and Intolerance (ECRI), which was established by

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the Council of Europe in 1993 to monitor measures to eliminate ‘violence, discrimination and prejudice’ on the basis of ‘race, colour, language, religion, nationality and national or ethnic origin’ (ECRI, quoted in Goodey, 2007, p. 425). The ECRI has recommended that states criminalise incitement to racial and religious violence, hatred or discrimination and enact legislation that enhances sentences for racially motivated crimes (ECRI, 2002, paras IV.18 and IV.21). It has also recommended the adoption of firm measures to prevent police racial discrimination and misconduct (ECRI, 2007, para II) and to ensure that the police investigate racist offences thoroughly (ECRI, 2007, paras III.11 and III.14). In addition, states should take active steps to prevent discrimination, violence and harassment against Muslims (ECRI, 2000). The above international and European instruments generate state duties to prevent, investigate and punish racially and religiously motivated victimisation and to eradicate racism in criminal justice agencies. They are thus premised on an acknowledgement that such victimisation is perpetrated not only by private persons but also by public bodies. Racially and religiously motivated offences In compliance with its obligations in terms of the Race Convention, the UK has criminalised incitement to racial hatred. Section 18(1) of the Public Order Act 1986 creates an offence for using ‘words or behaviour’ or displaying material which are ‘threatening, abusive or insulting’, if the defendant has the intention ‘to stir up racial hatred’ or such hatred ‘is likely to be stirred up’ in the circumstances. The Attorney General’s consent is required before a prosecution may be instituted (CPS, 2003, p. 6). Despite the fact that the offence has existed for a considerable time, very few prosecutions have ensued (Hall, 2005, p. 123). In view of the increasingly frequent equation of Muslims and terrorists in the aftermath of September 11 (McGhee, 2005, p. 99), the UK’s attempts to respond to calls by the CERD and ECRI to criminalise incitement to religious hatred generated controversy. Clause 39 of the Anti-Terrorism, Crime and Security Bill 2001, which created an offence of incitement to religious hatred, was excluded from the Bill by a majority of the House of Lords (ibid, p. 102). A subsequent attempt to criminalise such hatred in terms of the Religious Offences Bill 2002 also led to deep-seated differences of opinion (ibid, pp. 115–16). However, the offence of incitement to religious hatred finally became law in terms of the RRHA 2006. Amongst other things, it inserts a new s 29B into the Public Order Act 1986, which criminalises the use of ‘threatening words or behaviour’ or the display of threatening material if the accused ‘intends thereby to stir up religious hatred’. The offence may be committed in public or private, unless the person is in a dwelling and is not seen or heard by persons outside that dwelling (s 29B(2)). ‘Religious hatred’ is defined as ‘hatred against a group of persons defined by reference to religious belief or lack of religious belief’ (s 29A). Whereas the offence of inciting racial hatred requires either an inten-

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tion to stir up racial hatred or a likelihood that this will occur, the offence of inciting religious hatred may only be committed intentionally. Goodall has argued that, without a confession, the difficulty of proving the element of intent will probably render the offence unenforceable (2007, p. 113). Furthermore, the Attorney General’s consent is required for the institution of a prosecution and, as his office is a political one, political considerations may hinder the bringing of prosecutions (McGhee, 2005, pp. 107–9). Although the offences of incitement to racial and religious hatred signify governmental censure of racial and religious hatred, the fact that few prosecutions have been brought for incitement to racial hatred, coupled with the poor prospect of successful prosecutions for incitement to religious hatred, renders the protections they offer illusory to most victims. An effective response necessitates government strategies over and above criminalisation, such as education programmes and checks on media stereotyping (see Hall, 2005, pp. 230–1), to root out discriminatory social attitudes and practices. The UK has also responded to its external duties by creating racially and religiously aggravated offences. Sections 28–32 of the CDA, as amended by the Anti-Terrorism, Crime and Security Act 2001, recognise a series of such offences. Section 28(1) defines a ‘racially or religiously aggravated’ offence as one (a) where the defendant, ‘at the time of committing the offence, or immediately before or after doing so’, shows hostility to the victim ‘based on the victim’s membership (or presumed membership) of a racial or religious group’, or (b) that is fully or partially motivated ‘by hostility towards members of a racial or religious group based on their membership of that group’. A racial group is one ‘defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins’ (s 28(4)) whereas a religious group is one ‘defined by reference to religious belief or lack of religious belief’ (s 28(5)). The offences of assault occasioning actual bodily harm, assault with the intention to do grievous bodily harm and common assault (s 29), as well as criminal damage to property and certain public order and harassment offences (ss 30–32) may be racially or religiously aggravated. Convictions for any of these offences carry enhanced sentences. Furthermore, s 82 (reiterated in s 153 of the Powers of Criminal Courts (Sentencing) Act 2000 and contained almost verbatim in s 145 of the Criminal Justice Act 2003 (CJA 2003)) provides that if offences other than those contained in ss 29–32 are racially or religiously aggravated, the court must treat this as an aggravating factor and make a statement to this effect in open court. These aggravated offences have been criticised for being too broad and thus capturing ‘low-level, surface racist incidents’ rather than ‘deep-seated ideological hatred’ (McGhee, 2005, p. 30). However, this criticism fails to recognise that racist (and religiously motivated) victimisation often takes the form of an ‘ongoing pattern of harassment and violence’ which ranges from ‘lowlevel harassment’ to serious assaults (Phillips and Sampson, 1998, pp. 126–7) and which is more often perpetrated by ‘ordinary’ members of the community

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than by right-wing extremists (Iganski and Levin, 2004, p. 119; Garland and Chakraborti, 2006, p. 65; see Chapter 5). Broadly defined offences thus reflect the nature of racially or religiously motivated victimisation more accurately. However, concerns have been raised that, despite their breadth, these offences may not result in successful convictions. Malik has contended that their effectiveness will be impeded by the fact that there is a low rate of reporting as well as problematic relations between victims and the police (1999, p. 412; see Chapter 5). In addition, due to the difficulty of proving racial hostility or racial motive, prosecutors often charge perpetrators with the basic offence only in order to increase the chances of a conviction (Burney, 2003, p. 31). The offender may thus escape with a lighter sentence and without the stigma of having committed a racially motivated offence. Idriss has pointed to the danger that the difficulty of proving religious hostility or religious motive may lead to a similar barrier to religiously aggravated offences being prosecuted as such, rather than as the lesser, non-aggravated offence (Idriss, 2002, p. 908). Training of police and prosecutors is necessary to increase reporting levels by boosting confidence in their commitment to responding effectively to racially (and religiously) motivated crime (Iganski, 1999, p. 392; see below). Criminal justice responses The UK has also attempted to comply with its international and European obligations by encouraging reforms to criminal justice agencies. This section considers the extent to which these reforms have been effective in preventing secondary victimisation and eliminating discriminatory attitudes and practices. Police and multi-agency partnerships The charge of institutional racism levelled at the MPS in the Macpherson Report (1999; see Chapter 5) generated a spate of reforms aimed at transforming police responses to racially motivated victimisation. The more recent finding by the Commission on British Muslims and Islamophobia that Islamophobia ‘is becoming increasingly institutionalized’ (McGhee, 2005, p. 99; see Chapter 5) has led to a similar impetus on the part of the police to address their responses to anti-Muslim victimisation. The Association of Chief Police Officers has formulated principles of good practice in the policing of hate crime, which includes racist and religiously motivated crime (ACPO, 2005, para 2.2.8). It has adopted the definition of a racist incident recommended by the Macpherson Report, namely ‘any incident which is perceived to be racist by the victim or any other person’ (ibid, para 2.3.2; Mason, 2005, pp. 842–3) and has defined a faith-related incident as ‘any incident which is perceived to be based upon prejudice towards or hatred of the faith of the victim or so perceived by the victim or any other person’ (ACPO, 2005, para 2.3.5).

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ACPO has emphasised that, in responding to reports of such incidents, the police must ensure that they avoid subjecting victims to secondary victimisation (ibid, para 2.5.1). Police must be placed under a mandatory duty to respond by attending the scene of the incident, they must treat victims with sensitivity (ibid, para 5.1.6) and a ‘positive arrest’ policy should be adopted (ibid, para 6.2.1). In order to encourage reporting, ACPO has suggested that use be made of third-party reporting techniques, such as reporting sites at religious places of worship and community centres (ibid, para 5.3). In addition, it has stressed the importance of providing victims with services that are appropriate to their needs (ibid, paras 6.2 and 6.3), such as access to an interviewing officer from the same ethnic group and visits by trained Crime Prevention Officers (ibid, para 6.3.1). Witnesses should also be assisted by being given pre-court familiarisation visits and being accompanied to court (ibid, para 11.4.1). ACPO has highlighted the importance of a multi-agency approach to the provision of support and services to victims, recommending that police forge links with local organisations, such as Victim Support, statutory agencies and non-governmental community agencies (ibid, para 6.3.1). It has expressed the view that the statutory Crime and Disorder Reduction Partnerships may be pivotal in ensuring that victims receive ‘medium to long-term support’, provided that they liaise with other local agencies, such as housing and education authorities (ibid, para 7.3.7). The MPS, being the direct recipient of criticism by the Macpherson Report, has attempted to transform its responses to victims in a manner that reflects ACPO’s principles of best practice. It has adopted the victim-centred definition of a racist incident recommended by the Macpherson Report (Mason, 2005, pp. 842–3; see above) and has introduced a Hate Crime Policy that includes this definition as well as a victim-centred definition of religious hate crime (MPS, Hate Crime Policy). It has established a ‘Diversity Strategy’ with the objectives of improving its response to racially motivated crime, providing more sensitive services to victims and eliminating institutional racism (Hall, 2005, p. 172). It has set up CSUs, whose functions include the protection and support of victims of hate crime (ibid, p. 177). It has also introduced a ‘Hate Crime Victim Charter’ delineating the services that must be provided to victims by CSUs and containing information about other support for victims (ibid, p. 187). CSUs have been established in police forces outside the London Metropolitan Area. A multi-agency approach has been set up by the Suffolk County Council’s Racial Harassment Initiative, which is housed within the local CSU (Jalota, 2004, p. 145). It provides support and assistance to victims, such as interpreting and translating, counselling, a telephone helpline and assistance in the pre-trial process (ibid, pp. 148–9). Its work with victims has been strengthened by collaboration with the Suffolk Crime and Disorder Reduction Partnerships (ibid, p. 152). There are some encouraging signs that these police and multi-agency initiatives have had a positive effect. For instance, research has shown that the

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police recording and treatment of racial and faith hate incidents has improved in recent years in response to the strictures of the Macpherson Report (Chakraborti, 2007, p. 114; Editorial, 2005, p. 900). However, many victims and their communities continue to believe that the police are indifferent and insensitive. Such perceptions may be given credence by findings that police stops and searches are directed even more disproportionately at minority ethnic groups than was the case at the time of the Macpherson Report (Davie, 2007, p. 89), with the Home Office releasing figures that stops and searches of Asian persons had increased by more than 300 per cent between July 2003 and July 2004 (McGhee, 2005, p. 99). Conversely, several studies have found no evidence of systemic police bias in stops and searches (see Chapter 5) and the existence of such bias is thus open to debate. Victims’ perceptions of police bias and insensitivity nonetheless reflect the reality of many victims’ experiences. Racial and faith-based victimisation in rural areas is poorly addressed and victims report experiences of racial stereotyping and exclusion at the hands of the police and other local agencies (Garland and Chakraborti, 2006, pp. 59–64; see Chapter 5). It has also been contended that multi-agency initiatives dealing with racially motivated victimisation have been fraught with problems, such as victim-blaming attitudes and hesitation to pursue offenders ‘for fear of a white backlash’ (Bowling and Phillips, 2002, p. 124). Despite the signs of improvement that have emerged from research, therefore, the continued existence of discriminatory attitudes and practices testifies to the accuracy of Hall’s comment that ‘changes to proscriptive policy are not a guarantee that success will be achieved “in the real world” ’ (2005, p. 207). The Macpherson Report (1999) emphasised the importance of police training in race relations and cultural diversity as a method of changing these attitudes and practices (ibid, p. 175). ACPO has also highlighted the need for training in order to ensure that the police perform their duties and provide services to victims in a manner that is sensitive to their experiences (ACPO, 2005, para 17). In consequence, training programmes now include ‘community and race relations . . . issues’ (Hall, 2005, pp. 175–6). Crown Prosecution Service The CPS has committed itself to prosecuting racially and religiously motivated crime ‘fairly, firmly and robustly’, emphasising that the prosecution of such crimes is ‘almost always’ in the public interest (CPS, 2003, pp. 2, 11). It has acknowledged the fact that, in view of the difficulty of proving racial or religious hostility or motive in racially or religiously aggravated offences, it is sometimes necessary to add alternative charges to the basic offence. However, it has stressed that, by doing so, it does not intend to encourage guilty pleas to the lesser offence and will not accept such pleas without ‘sound reasons for doing so’ (ibid, pp. 11, 19). If a prosecutor makes a decision to drop or reduce the

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charge, he or she will meet with the victim and explain his or her reasons for doing so (ibid, p. 21; see, also, para 7 of the Victims’ Code). The CPS’s robust prosecution policy, coupled with its stated intention to resist charge reduction and guilty pleas to lesser charges, is a positive response to research demonstrating a tendency on the part of the CPS to reduce charges or accept guilty pleas to the basic offence in order to overcome difficulties of proving racial or religious motive or hostility (see above). However, given the fact that the elements of the offences themselves generate such difficulties of proof, the extent to which the CPS will succeed in translating its stated intention into practice is open to question. The CPS has taken the view that, as corroborative evidence will often be absent, it will ordinarily be necessary for victims to testify. However, it will use other evidence if it is available (ibid, p. 13). In cases where victims withdraw the complaint or are unwilling to testify, it has stated that it will attempt to persuade the court to admit the victim’s statement under the hearsay exception (see Chapter 9), but has highlighted the unlikelihood of the court doing so if the victim is the only witness (ibid, pp. 13–14). It will therefore compel victims to testify if it deems the prosecution in the public interest (ibid, p. 14). In such circumstances, it has undertaken to take steps to enable victims to receive support and assistance in the process of giving evidence, such as access to special measures, court rulings on anonymity and the help of the Witness Service (ibid, pp. 16–19; see Chapters 8 and 9). The CPS conducts training programmes for prosecutors, which were designed with the assistance of members of minority ethnic and faith-based groups, to facilitate understanding of the dynamics of racially and religiously motivated crime (ibid, pp. 3, 22). It also conducts general training in ‘race and diversity awareness’ (ibid, p. 3). Court process There is limited research concerning minority ethnic victims’ experiences of the court process. A recent study found that minority ethnic witnesses did not experience racial bias in the Crown Court and that only 7 per cent of such witnesses reported racial bias in the magistrates’ courts (Hood, Shute and Seemungal, 2003). Although it is conceivable that victims may experience racial discrimination by juries in the form of unjust acquittals of white defendants, there is no evidence that victims have perceived this to be the case (Daly and Pattenden, 2005, p. 680). In fact, recent research has demonstrated that, rather than displaying racial discrimination by delivering unjust acquittals, ‘[w]hite juror conviction rates overall were . . . highest where the victim was [b]lack, and where the defendant was either [w]hite or Asian (but not [b]lack)’ (Thomas, 2007, p. 183). It appears that, overall, minority ethnic persons (both victims and defendants) are experiencing the court process as more racially impartial in recent years (Abbas, 2004, p. 8). In the case of Crown Courts, this may be due to

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the judiciary’s commitment to training in race relations and diversity awareness (ibid, p. 13). The Judicial Studies Board has included issues of racially motivated victimisation and discrimination on the basis of religious belief or lack of belief in its training courses (Equal Treatment Advisory Committee, 2004). Although the limited research that is available contains positive findings concerning the courts’ treatment of minority ethnic persons, it is nonetheless the case that very few cases of racially or religiously motivated offences reach the courts, due to the low levels of reporting and prosecution of these offences (see Chapter 5 and above). Despite the proliferation of criminal justice laws and policies regulating racially and religiously motivated victimisation in recent years, the UK has yet to demonstrate effective compliance with its international and European duties. Although there are signs that the police responses have improved, the prosecution and conviction rates remain very low, resulting in a breach of the duty to punish perpetrators. The persistence of secondary victimisation, particularly by the police, is further evidence of the lack of full compliance with these duties.

Homophobic and transphobic victimisation This section critically evaluates the government’s response to homophobic and transphobic victimisation in light of its international obligation to exercise due diligence to prevent, investigate and punish cruel, inhuman or degrading treatment. It contends that existing law and policy not only inadequately protect victims from these forms of victimisation but also fail to prevent secondary victimisation by criminal justice agencies. Human rights instruments Unlike the other forms of victimisation discussed above, homophobic and transphobic victimisation are not regulated by a specific international or European human rights instrument. There are nonetheless provisions in several general instruments that apply to such victimisation. For instance, LGBT persons are protected by article 7, read with article 2, of the International Covenant on Civil and Political Rights 1966 (ICCPR). Article 7 provides that ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. Article 2.1 requires States Parties to ensure that all persons have the rights enshrined in the Covenant without discrimination, inter alia, on the ground of sex. The Human Rights Committee has held that the criterion of sex in article 2.1 includes sexual orientation.1 It has also stated that article 7 includes acts that cause both physical and mental harm (Human Rights Committee, 1992, para 5). As victims of homophobic and transphobic crime

1 Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994).

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may suffer both physical and mental harm (see Chapter 6), which constitutes cruel, inhuman or degrading treatment on account of sex, such crimes accordingly violate article 7. The HRC has stated that States Parties have a duty to protect persons against the conduct outlined in article 7, whether it is committed by public officials or private persons, and that this duty requires not only the criminalisation of the conduct but also the taking of effective steps to prevent and punish it (ibid, paras 2, 8). It has recently expressed concern about levels of hate crime against LGBT persons in the US and the absence of criminal provisions for homophobic or transphobic hate crime at federal level as well as in many states. It has therefore urged the US to comply with its duty in terms of article 2 and to include such hate crime in its legislation (Human Rights Committee, 2006, para 25). Drawing on these provisions of the ICCPR and the opinions of the HRC, Amnesty International has emphasised that ‘homophobic violence in the community [is] a human rights issue engaging the state’s responsibility under international standards’ (Amnesty International, 2001). It has argued that states must criminalise homophobic violence and incitement to hatred against LGBT people and must ensure that law enforcement agencies receive appropriate training (ibid). The issue of homophobic victimisation has also been considered by the Council of Europe Parliamentary Assembly, which has noted with concern that gay people suffer violence and discrimination and has recommended that ECRI’s terms of reference be extended to include homophobia (Council of Europe Parliamentary Assembly, 2000, paras 2, 11.ii). In addition, LGBT persons fall within the provisions of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR), which prohibits inhuman or degrading treatment, and which, read with article 1, imposes a positive duty on the state to take steps to ensure that state agencies or private persons do not subject vulnerable persons to inhuman or degrading treatment2 (see Chapter 7). Offences Until recently, English law recognised no offence of incitement to homophobic or transphobic hatred. However, the Criminal Justice and Immigration Act 2008 has amended the Public Order Act 1986 by extending the offences regarding religious hatred (see above) to ‘hatred on the grounds of sexual orientation’, defined as ‘hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both)’ (s 29AB). While this definition clearly applies to LGB persons, the absence of a reference to hatred on the grounds of gender identity means that, on a

2 A v UK (1999) 27 EHRR 611 at para 22.

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literal interpretation of the Act, transgender persons do not fall within its purview. Amongst other things, the amended s 29B criminalises the use of ‘threatening words or behaviour’ or the display of threatening material if the accused ‘intends thereby to stir up . . . hatred on the grounds of sexual orientation’. As is the case with the offence of stirring up religious hatred, this offence may only be committed intentionally and is thus subject to difficulties of proof which may hinder the bringing of successful prosecutions (see above). Contrary to the position in regard to racially and religiously motivated crime, there are no aggravated offences for homophobic or transphobic victimisation. However, in terms of ss 146(2) and (3) of the CJA 2003, the fact that the defendant demonstrated hostility to the victim on the basis of his/her ‘sexual orientation (or presumed sexual orientation)’ or the fact that the crime was fully or partially motivated ‘by hostility towards persons who are of a particular sexual orientation’ must be regarded as an aggravating factor, which must be stated in open court. These provisions contain no reference to gender identity and thus, literally interpreted, do not encompass hostility towards transgender persons. Whereas the specific racially and religiously aggravated offences are statutorily subject to enhanced sentences (see above), no such sentence enhancement automatically accompanies the provisions of s 146. The weight to be attached to the aggravating factor is within the court’s discretion. The resulting difference in treatment between LGBT victims and victims of racially and religiously motivated crime arguably opens the UK to a charge of contravening article 7, read with article 2, of the ICCPR. Criminal justice responses Homophobic and transphobic victimisation is extensively under-reported (Hall, 2005, p. 195) and attracts very few police investigations and prosecutions (McGhee, 2005, p. 128; see Chapter 6). Furthermore, there is a perception on the part of the LGB community that police and multi-agency initiatives are institutionally homophobic (ibid, p. 129). However, in consultation with statutory and community agencies, the police and the CPS have attempted to improve their responses to homophobic and transphobic victimisation. Police and multi-agency responses Since 1998 the police have been under a statutory duty to record homophobic victimisation and ‘to include LGBT people in Community Safety Partnerships’ with a view to generating a more positive approach to the policing of such victimisation (Williams and Robinson, 2004, p. 217). ACPO has defined a homophobic incident as ‘[a]ny incident which is perceived to be homophobic by the victim or any other person’ and has adopted a parallel definition of a

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transphobic incident (ACPO, 2005, paras 2.3.3 and 2.3.4). Its principles of best practice for responding to racially and religiously motivated victimisation (see above) apply equally to homophobic and transphobic incidents. It has recommended that the police respond sensitively to reports of such victimisation and take positive steps to remove the barriers to reporting, in order to gain the trust of LGBT communities (ibid, paras 15.9.15 and 15.10.4). It has also urged the appointment of appropriately trained LGBT liaison officers across all police forces to act as a point of contact between the police and LGBT communities (ibid, paras 15.9.18 and 15.10.7). It has emphasised the importance of ‘awareness training on LGBT issues’ for all police officers (ibid, para 15.9.19). In addition, it has commended self-reporting and third-party reporting schemes as good practice to encourage the reporting of homophobic incidents (ibid, para 15.9.22). Not all police forces have adopted ACPO’s recommendations. Research indicates that the police, as well as criminal justice agencies generally, still fail ‘to take homophobic violence seriously’ (Moran, 2004, p. 928) and still display homophobia (Moran and Skeggs, 2004, p. 55). However, there are recent examples of good practice in some police forces. The Hampshire Constabulary, for instance, has introduced lesbian and gay liaison officers who are specially trained ‘to deal with crimes motivated by homophobia’ and has established a partnership with the Southampton Gay Community Health Service to provide services, such as anonymous reporting, to victims (McGhee, 2005, p. 130). The Greater Manchester Police have introduced ‘community consultation groups’ which ‘have been successful at improving relations between the police and the LGB community’ (Williams and Robinson, 2004, p. 214). Research also indicates progress in the police responses to the LGB community in Wales (ibid, p. 230). Although these examples of good practice are to be welcomed, a force-wide positive policing policy regarding homophobic and transphobic victimisation is lacking. Furthermore, it is doubtful whether such good practice will be able to generate full relationships of trust between the police and the LGBT community in the absence of ‘wider structural changes in . . . the criminal justice system’ (Williams and Robinson, 2004, p. 217). Moran and Sharp have contended that the police may lack a clear understanding of the lived realities of transgender persons. On the one hand, transphobic incidents may be misconstrued as homophobic incidents, which may have a negative ‘impact upon both strategic and operational responses to violence’ (Moran and Sharp, 2004, p. 409). On the other hand, it may not be appreciated that transgender persons may have different experiences of violence depending on their chosen gender. It is accordingly important that police receive training in order to appreciate that transgender persons’ experiences of violence are differentiated not only according to their gender identity but also according to other structural hierarchies, such as gender and race (ibid, p. 411). A male-to-female transgender person, for instance, may experience violence

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due to their transgender status as well as gender-based violence due to their status as a woman (ibid, p. 405). Crown Prosecution Service The CPS has adopted a positive prosecution policy regarding homophobic and transphobic offences to the effect that, provided that there is sufficient evidence to afford a realistic prospect of conviction, a prosecution will ‘almost always’ be in the public interest (CPS, 2002). It has adopted ACPO’s definition of homophobic and transphobic incidents (ibid; see above). Prosecutors must, it has emphasised, treat victims sensitively, particularly as regards their fears of ‘being outed’, and strive to ensure that they will be provided with special measures to assist them to testify (ibid). It has indicated that the court may make reporting restrictions to protect victims’ identity, but has warned that ‘it would be unwise to raise [their] hopes’ that this will happen (ibid). As regards victims who no longer wish to testify, it has stressed that, although evidence of coercion must be scrutinised, it is unlikely that a court would permit the victim’s statement to be given under the hearsay exception (see Chapter 9). In the absence of other evidence, it may therefore be necessary to compel a reluctant victim to testify (ibid). Although the CPS’s positive prosecution policy indicates a willingness to improve the currently low prosecution rate of homophobic and transphobic offences, its practical effect is likely to be minimal, given the high rate of underreporting of such offences (see Chapter 6). The criminal justice responses to LGBT victimisation are clearly much less rigorous than those relating to racially and religiously motivated victimisation. Piecemeal police policies, coupled with the probability that the CPS policy will be ineffective, are insufficient to prevent and punish homophobic and transphobic victimisation, as required by articles 7 and 2.1 ICCPR, or to eliminate secondary victimisation. Without a Macpherson-type report to galvanise criminal justice agencies into action in this regard, it is unlikely that effective responses will be developed.

Elder abuse Unlike the other forms of victimisation discussed above, the issue of elder abuse has received little attention in English criminal law and criminal justice policy. It has also only recently begun to be regarded as a human rights issue in the international arena. This section critically evaluates the dearth of specific criminal justice responses to elder abuse in the UK in light of this emerging international human rights discourse. Drawing on American initiatives, it contends that, in order to effectively prevent and punish elder abuse, and to accord protection to victims, the UK ought to criminalise elder abuse and ensure the development of an effective criminal justice response to victims.

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Human rights dimensions Elder abuse is not the subject of any specific international or European human rights instruments. However, the non-binding Recommendation No. R (97) 13 concerning Intimidation of Witnesses and the Rights of the Defence 1997 requires states to afford special protection to elder abuse victims (article 21). It makes several recommendations for the protection of vulnerable witnesses, such as the use of special measures and judicial supervision of the examination of witnesses, which apply to such victims (articles 27 and 28). In addition, it enjoins states to prevent secondary victimisation by criminal justice agencies (article 23; see Chapter 9). Furthermore, the fundamental rights enshrined in instruments such as the ICCPR and the ECHR apply to all persons, including the elderly. Rights of particular relevance include the right to life (article 6 ICCPR, article 2 ECHR) and the right to freedom from inhuman or degrading treatment or punishment (article 7 ICCPR, article 3 ECHR). Help the Aged has contended that the state has a positive obligation to take steps to enable elderly persons to exercise these rights effectively (Fitzgerald, 2006, p. 92). The state’s positive obligation in terms of article 2 ECHR to take reasonable steps ‘to avoid a real and immediate risk to life of which they have or ought to have knowledge’3 (see Chapter 7) would apply to an elderly person whose real and immediate risk to life at the hands of family members or care institutions is or ought to be known by the police. Likewise, the ruling in A v UK 4 that the state has a positive duty in terms of article 1, read with article 3 ECHR, to ensure that vulnerable persons, in particular, ‘are not subjected to torture or inhuman or degrading treatment or punishment’ by the state or by private persons (para 22) applies to the elderly, as does the state duty in terms of article 7 ICCPR to prevent and punish perpetrators of cruel, inhuman or degrading treatment. The international human rights community has recently come to regard elder abuse as a human rights concern. The then UN Secretary General, Kofi Annan, has emphasised that ‘[a]busive behaviour and practices towards older persons may be viewed as a violation of their fundamental rights as guaranteed in international covenants’ (United Nations Economic and Social Council, 2002). Furthermore, the UN International Plan of Action adopted in Madrid in 2002 placed elder abuse within a human rights framework (World Health Organisation, 2002). Amongst other things, the Plan of Action recommended that states enforce laws prohibiting elder abuse and devise multi-agency initiatives involving the community to address the issue (HelpAge International, 2002, p. 10). The growth of international interest in elder abuse has largely been due to the efforts of the International Network for the Prevention of Elder Abuse (INPEA), an organisation which aims, amongst other things, to generate awareness of

3 Osman v UK (2000) 29 EHRR 245 at para 116. 4 (1999) 27 EHRR 611.

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elder abuse and to advocate effective responses to it (Penhale, 2006, p. 166). It was granted the status of a non-governmental organisation with the UN in 2003 (ibid, p. 168) and played a significant role in the above Plan of Action. Whether or not this emerging international discourse on elder abuse leads to the enactment of specific human rights instruments protecting elderly victims from abuse and placing positive obligations on states to take measures to prevent and punish elder abuse remains to be seen. At present, however, although victims are protected, in principle, by Recommendation R (97) 13 and the fundamental rights enshrined in general human rights instruments, there is a dearth of cases in which these rights have been applied to the issue of elder abuse. English law and policy English law does not recognise an offence of elder abuse, although perpetrators may be charged with ordinary criminal offences, where appropriate. It has been contended that ageist attitudes have generated a tendency to ignore the criminal dimensions of elder abuse (Fitzgerald, 2006, p. 92). There is no substantive criminal justice policy on elder abuse. Instead, government policy (Department of Health, 2000; see Chapter 6) has relegated responsibility for elder abuse to Social Services (Action on Elder Abuse et al., 2004, p. 5). This conveys the impression that, unlike other crimes, elder abuse ‘is a social rather than criminal issue’ (ibid, p. 5). Furthermore, government policy applies to vulnerable adults generally rather than elderly victims in particular (Fitzgerald, 2006, p. 91). Local multi-agency initiatives have accordingly established policies and procedures for adult protection (Manthorpe, 2006, p. 143), creating the danger that the specific needs and experiences of elderly victims of abuse will be overlooked. These multi-agency initiatives, albeit headed by the social services departments of local authorities, also comprise health authorities, the police and the CPS (ibid, p. 144). Criminal justice agencies do thus play a role in the implementation of policy and procedure. However, their contribution is limited by the overarching discourse of social policy that informs the response to vulnerable adults. The dominance of this discourse impedes the development of a human rights discourse on elder abuse that highlights the state’s responsibility to take positive steps to uphold the fundamental rights of victims, inter alia, by formulating criminal justice policies aimed at the protection of victims as well as at the prevention, investigation and punishment of elder abuse offences. The absence of such policies arguably opens the UK to a charge of failing to comply with Recommendation R (97) 13 (which is admittedly not binding) as well as article 7 ICCPR and articles 2 and 3 ECHR. American law The American approach to elder abuse is premised on the belief that a strategy

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comprising not only social or health services but also law enforcement is the most effective method of responding to elder abuse (Breaux and Hatch, 2003, p. 231). The criminality of elder abuse has accordingly been highlighted. Most states have enacted specific offences criminalising ‘abuse, neglect, and financial exploitation’ of elderly persons (Moskowitz, 2002–2003, p. 633). Furthermore, whereas some states have enacted sentence enhancement legislation in terms of which certain offences, such as assault, are viewed as more serious if the victim is elderly, other states regard this fact as an aggravating factor (ibid, p. 633). California, for instance, has adopted broadly defined offences of elder abuse (see Moskowitz, 2002–2003, pp. 634–5). One such offence is contained in s 368(b)(1) of the California Penal Code, which criminalises the conduct of anyone who knows or ought reasonably to know that a person is elderly and who, in circumstances that are likely to cause serious bodily injury or death: willfully causes or permits any elder . . . to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder . . ., willfully causes or permits the person or health of the elder . . . to be injured, or willfully causes or permits the elder . . . to be injured, or willfully causes or permits the elder . . . to be placed in a situation in which his or her person or health is endangered. In terms of s 368(b)(2) and (3) respectively, the penalties are increased if serious bodily injury or death is caused. Section 368 also provides for penalties for the commission of other offences against the elderly, such as theft and fraud (Luu and Liang, 2005–2006, p. 180). These substantive criminal offences are complemented by the policies of the California Attorney General’s Office, which include a commitment to the investigation and prosecution of elder abuse, the provision of a telephone hotline to report such abuse and the training of the employees of care institutions in the dynamics of elder abuse (ibid, pp. 180–1). In addition, police training in elder abuse is provided by the California Commission on Peace Officer Standards and Training (Moskowitz, 2002–2003, p. 636). In order to enhance the prospects of prosecution, most states, including California, make the reporting of elder abuse mandatory for certain categories of persons, such as nurses, social workers and medical practitioners (Luu and Liang, 2005–2006, pp. 184–5). Despite the existence of specific offences of elder abuse, positive prosecution policies and mandatory reporting laws in most states, however, the rate of prosecutions of elder abuse is low (Davidson, 2004, p. 339). One of the reasons may be that, although the mandatory reporting laws carry a criminal penalty for non-compliance, the level of reporting of known abuse is low (Luu and Liang, 2005–2006, p. 185). Other reasons include cost and resource constraints, as well as the fact that, as many cases of elder abuse occur in the home rather than in care institutions, they are not detected (Davidson, 2004, pp. 339–40).

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Nonetheless, provided that more resources are allocated to the detection, investigation and prosecution of cases of elder abuse, the fact that a concerted criminal justice strategy exists for its prevention and punishment is more conducive to the upholding of victims’ fundamental rights than a policy, such as that of the UK, which is located solely within the province of Social Services. There are recent indications of governmental willingness to allocate resources to improving criminal justice responses to elder abuse at federal level. In terms of the Elder Justice Act 2007 (which has not yet been passed), the Attorney General is required to formulate policies concerning, amongst other things, the prevention and detection of elder abuse and the ‘improvement of the elder justice system’ and financial resources are made available for this purpose (s 202). In addition, s 206 provides that the Attorney General must ‘establish procedures to ensure resources are dedicated to investigating and prosecuting cases related to elder justice’. If passed, the Act will establish a co-ordinated criminal justice strategy for the prevention and punishment of elder abuse at federal level, underpinned by fairly substantial resources, that will complement existing state strategies and may improve reporting and prosecution rates. The American approach to elder abuse contains parallels to the UK’s criminal justice responses to racially and religiously motivated crime. Both comprise the criminalisation of the conduct, the enactment of sentence enhancement legislation or the use of aggravating factors in sentencing, and the development of positive policing and prosecutorial policies. The introduction of a specific criminal justice strategy for elder abuse in the UK could accordingly be modelled on its existing strategies to combat racially and religiously motivated crime. In order to ensure that the UK responds to the recent international delineation of elder abuse as a human rights issue and complies with the requirements of Recommendation R (97) 13, the introduction of such a strategy ought to be seriously considered.

Enforcement of state duties The above analysis has shown that, although the UK has made several commendable strides in the direction of preventing, investigating and punishing the victimisation of unequal social groups, as well as reducing discriminatory attitudes and practices that generate secondary victimisation, English law and policy fall short of international and European standards in several respects. The response to minority ethnic women’s lived experiences of domestic violence is inadequate. The prosecution and conviction rates for rape, racially and religiously motivated crime, as well as homophobic and transphobic crime, are low. Racial, religious and homophobic prejudice on the part of the police persists. Finally, a concerted criminal justice policy to prevent and punish elder abuse is lacking. Although victims may, in principle, receive redress for these breaches from the HRC or the ECtHR, such redress is expensive, difficult to obtain and unlikely to be pursued by many victims. This form

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of redress is accordingly not addressed. In addition, although the above analysis has highlighted other state failings, such as the absence of substantive elder abuse offences, human rights advocacy to encourage the introduction of such offences is beyond the scope of this book. This section is thus restricted to an assessment of whether English law grants victims an effective remedy for the violation of their rights, as is required by most international and European human rights instruments. Article 6 of the Race Convention, for instance, requires states to grant victims effective remedies for racial discrimination and the right to ‘just and adequate reparation or satisfaction for any damage suffered as a result’. Both article 3 ICCPR and article 13 ECHR provide that victims have the right to an effective remedy for breach of the rights enshrined in these instruments. In what follows, English legislation is assessed to determine whether the UK has complied with its duty to provide effective remedies for victims from unequal social groups where the failure of criminal justice agencies to respond adequately amounts to unlawful discrimination. Anti-discrimination legislation The UK has recently extended the anti-discrimination provisions of the Race Relations Act 1976 (RRA) and the Sex Discrimination Act 1975 (SDA) to public authorities, including the police and the CPS. It has also prohibited discrimination on the ground of religion and sexual orientation by such public authorities. Both direct and indirect discrimination are prohibited (see s 1(1) RRA, s 1(1) SDA, s 45 of the Equality Act (EA) and reg 3 of the Equality Act (Sexual Orientation) Regulations 2007 (EASOR)). In terms of s 19B(1) of the RRA (as inserted by s 1 of the Race Relations (Amendment) Act 2000 (RRAA), it is unlawful for a public authority to commit an act of discrimination in carrying out its functions. The reference to ‘public authority’ includes the police and the CPS. However, CPS decisions not to institute or continue a prosecution are exempt from the provisions of s 19B (s 19F), as is the exercise of judicial functions (s 19C(1)). Section 83 of the EA similarly inserts a new s 21A into the SDA which makes it unlawful for a public authority to commit an act of discrimination in carrying out its functions. Again, a ‘public authority’ includes the police and the CPS, but excludes CPS decisions not to institute or continue prosecutions (s 21A(9)6) as well as the exercise of judicial functions (s 21A(9)4). The EA and EASOR contain analogous provisions concerning discrimination on the ground of religion and sexual orientation respectively (s 52 EA; reg 8(1) read with Schedule 1 EASOR). If a public authority commits an act of unlawful discrimination on the grounds of race, gender, religion or sexual orientation, the aggrieved victim has standing to sue the public authority in tort for breach of statutory duty (s 57 RRA; s 66(1) SDA; s 66(1) EA; reg 20(1) EASOR). In the case of unlawful discrimination by police officers, the chief of police is vicariously liable if such

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discrimination occurred in the course of their employment (s 76A RRA as inserted by s 4 RRAA; s 17A SDA; s 75 EA; reg 31 EASOR). In addition to the prohibition of discrimination by public authorities, s 71(1) RRA (as inserted by s 2 RRAA) imposes a duty on certain bodies, including the police, to ‘have due regard to the need . . . (a) to eliminate unlawful racial discrimination; and (b) to promote equality of opportunity and good relations between persons of different racial groups’ in carrying out their functions. If a public authority fails to comply with this duty, the victim has recourse to judicial review (Field and Roberts, 2002, p. 494). In a similar vein, s 84 EA inserts a new s 76A into the SDA, in terms of which a public authority is required to ‘have due regard to the need . . . (a) to eliminate unlawful discrimination and harassment, and (b) to promote equality of opportunity between men and women’ in the carrying out of its functions. However, no analogous duty is imposed on public authorities in respect of the elimination of discrimination or the promotion of equality of opportunity and good relations in the areas of religion and sexual orientation. These anti-discrimination provisions afford some assistance to victims of rape, racially and religiously motivated crimes and homophobic crimes whose cases are not dealt with adequately by criminal justice agencies. If, for instance, the failure of the police to conduct an effective investigation or to respond satisfactorily to the victim’s needs amounts to direct or indirect unlawful discrimination on the grounds of race, religion or sexual orientation, the victim is entitled to sue the police. Similarly, if the police treated a rape victim insensitively on account of her gender, she has standing to sue. It will, however, be difficult to prove that the victim was treated less favourably than a similarly situated white person (Field and Roberts, 2002, p. 511), a person of another religion, a heterosexual person or a male rape victim, which is needed for a finding of direct discrimination. It will be even more difficult to prove the requirements for a finding of indirect discrimination. Victims’ remedies may therefore be frustrated by difficulties of proof. As the decision of the CPS not to institute or continue prosecutions is exempt from the prohibition of unlawful discrimination, aggrieved victims have no standing to sue the CPS in this respect. The low rate of prosecutions for rape, incitement to racial and religious hatred, racially and religiously motivated crimes as well as homophobic crimes will thus not give rise to liability in terms of the anti-discrimination legislation. However, there is some scope, albeit limited, for proceedings to be brought for judicial review (see Chapter 7). A further concern with these provisions is the fact that different grounds of discrimination are regulated by independent provisions, thereby precluding the recognition of the intersectional discrimination experienced by some victims, such as minority ethnic victims of domestic violence. As the legislation stands, an aggrieved victim would have to base her claim on unlawful sex discrimination in terms of the SDA or unlawful racial discrimination in terms of the

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RRA. The fact that her lived experience straddles these grounds would not be relevant to her claim. The EA does not prohibit discrimination by public authorities on the grounds of gender identity or age. Victims of transphobic crime or elder abuse whose cases are dealt with unsatisfactorily by criminal justice agencies are accordingly without a remedy. In an attempt to address the position, the government has recently indicated an intention to prohibit discrimination by public authorities on the ground of gender reassignment (Communities and Local Government, 2007, para 10.11). Although the recognition of such a duty will provide transsexual persons, i.e. persons who have undergone gender reassignment, with a remedy for unlawful discrimination by criminal justice agencies in the same way as the other protected groups, it will not extend to transgender persons who identify themselves with the opposite gender but who have not undergone gender reassignment. As regards the lacuna with respect to victims of elder abuse, the government has stated that it is not convinced that the prohibition of age discrimination by public authorities is the best approach to adopt (ibid. para 9.15). There is accordingly little sign that the unenviable position of victims of elder abuse will improve. The government has also indicated that it plans to bring together the separate duties on public authorities to eliminate race, sex (and disability) discrimination and to promote equality of opportunity on these grounds into one composite duty (ibid, para 5.23). It has contended that the existence of such a composite duty will ‘make it easier to address the needs of groups facing multiple discrimination . . . such as women from particular minority ethnic communities’ (ibid, para 5.24). It has also evinced a willingness to extend this duty to include the grounds of religion, sexual orientation and age (ibid, para 5.57). If the government’s proposed reforms are adopted, victims from all the groups discussed in this chapter, with the exception of victims of elder abuse and transgender victims who have not undergone gender reassignment, will have standing to sue criminal justice agencies if they have committed acts of unlawful discrimination. English law is thus making significant moves in the direction of providing effective remedies for such victims. However, problems remain, not least of which is the inability of victims to sue the CPS for not instituting or continuing prosecutions. Aldana-Pindell has pointed to the fact that international human rights law has recognised a state duty to prosecute crimes that violate the right to life and the right to personal integrity, and that this means that victims ought to have a justiciable right to prosecutions (Aldana-Pindell, 2002, pp. 1413, 1415). Victims from the socially unequal groups discussed in this chapter would undoubtedly benefit from the UK’s recognition of such a right. Human Rights Act 1998 Apart from the anti-discrimination legislation, it is also possible to base a claim against criminal justice agencies for discriminatory acts on the Human Rights

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Act 1998. A public authority acts unlawfully if it violates a Convention right (s 6(1)) and an aggrieved victim has standing to sue the public authority for doing so (s 7(1); see Chapter 7). Although the ECHR contains no substantive right to equality, article 14 provides that ‘[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. In view of the fact that the list of prohibited grounds of discrimination is not exclusive, non-listed grounds may also fall within the parameters of article 14. The ECtHR has held, for instance, that sexual orientation falls within article 145 and age will no doubt be similarly construed. However, article 14 is not a free-standing right, but must engage one of the substantive rights enshrined in the ECHR. The ECtHR has held that the determination of whether article 14 has been infringed necessitates a two-fold inquiry. The first question is whether the subject matter of the case falls within the ambit of one of the other Convention rights.6 If it does, article 14 is engaged. It is not necessary that one of these other rights actually be violated (Field and Roberts, 2002, p. 514). For instance, police failure to conduct an effective investigation may fall within the ambit of the right to life (article 2 ECHR; Field and Roberts, 2002, p. 514) or the right to freedom from inhuman or degrading treatment (article 3 ECHR) if it exposes the victim’s life or bodily integrity to a sufficiently serious risk (see Chapter 7). Such circumstances would engage article 14. The ECtHR has adopted a broad, purposive approach to the determination of whether the subject matter falls within the ambit of one of the substantive Convention rights.7 Baker has contended that, in order to do justice to the jurisprudence of the ECtHR, the English courts must hold that ‘the facts of a case enter into the ambit any time a state decision or measure directly or indirectly, intentionally, accidentally, or even unforeseeably has the effect of impairing the ability of an individual or group to enjoy the right in question on a basis of equality with the rest of society’ (Baker, 2006, p. 718). The state failure to establish a concerted criminal justice policy to investigate and prosecute elder abuse, for instance, may fall within the ambit of articles 2 and 3 ECHR. The absence of such a policy clearly has the effect of impairing the ability of the elderly to enjoy their rights equally with other members of society. The second inquiry is whether there has been unjustified discrimination. The ECtHR affirmed in Thlimmenos v Greece 8 that the state discriminates if it

5 6 7 8

See, e.g., L and V v Austria (2003) 36 EHRR 55. See, e.g., Adulaziz, Cabales and Balkandali v UK A.94 (1985) 7 EHRR 471 at para 71. See, e.g., Thlimmenos v Greece (2001) 31 EHRR 15. (2001) 31 EHRR 15.

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treats persons in analogous situations differently or ‘fails to treat differently persons whose situations are significantly different’ (para 44). Such discrimination is unjustified if either it pursued no legitimate aim or, if it did, that there was no ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’ (para 46). If it is shown, for instance, that, by failing to conduct an effective investigation, the police treated minority ethnic or LGBT victims differently from their white or heterosexual counterparts, or that the absence of a policy for responding to elder abuse resulted in differential treatment between older and younger victims, then, provided that there was no legitimate aim or proportionality, article 14 would be violated. The plight of victims of domestic violence whose immigration status is unsettled constitutes a further example. If it is established that the state refusal to grant state benefits to such victims amounted to a failure to treat them differently, on account of the fact that they are victims of domestic violence, from other persons whose immigration status is not settled, article 14 would, in the absence of justificatory factors, be violated. The HRA accordingly provides victims with an alternative remedy to the anti-discrimination legislation. However, the added burden of having to show that the impugned conduct falls within one of the substantive Convention rights renders the pursuit of an HRA claim more difficult than one based on the anti-discrimination provisions. It is to be hoped that the government will introduce general equality legislation prohibiting unlawful discrimination by public authorities against all the groups discussed in this chapter, in order to alleviate the disparities that exist between those who have remedies and those who do not.

Conclusion Although it appears from the above analysis that current law and policy evince a commitment to the prevention, investigation and punishment of victimisation directed at persons on account of gender, race, religion, and, to a lesser extent, sexual orientation and gender identity, as well as the elimination of secondary victimisation, there are nonetheless significant lacunae. Minority ethnic victims of domestic violence have received little attention from criminal justice agencies. The attrition rate in rape cases continues to be high. Racially and religiously motivated crimes, as well as homophobic and transphobic crimes, are under-policed and few prosecutions ensue. Perceptions of police prejudice persist. Most significantly, victims of elder abuse have been left out in the cold. Despite the recognition of remedies for victims of most of these crimes, apart from victims of elder abuse, difficulties of proof may frustrate victims’ claims. Furthermore, criminal justice law and policy, as well as the anti-discrimination and human rights provisions that regulate these areas, are beset by problems of fragmentation. The government has indicated a willingness to

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streamline the anti-discrimination legislation and extend it to all socially unequal groups (with the exception of those which suffer age discrimination, which, it has been argued, ought to be included). By analogy, it ought to develop a more co-ordinated and internally consistent set of laws and policies that applies to all victims who experience victimisation on account of grounds that qualify for protection from discrimination. Provided that problems, such as police prejudice and low prosecution rates, are effectively resolved, the development of such a co-ordinated approach will benefit victims by concentrating resources and generating uniform rules for criminal justice agencies to follow. The most significant concern to emerge from this chapter, however, is the dearth of protection for victims of elder abuse. The government’s failure and, indeed, expressed unwillingness to legislate in this area constitutes a serious indictment on a society that prides itself on upholding the value of ‘ordinary human decency’ and demonstrates a worrying lack of concern for the well-being of those to whom it owes its existence.

Questions for further discussion

• • • •

How could criminal justice agencies improve their investigation and prosecution of racially and religiously motivated crimes? What measures would assist in removing homophobic and transphobic attitudes on the part of criminal justice agencies? How should the UK respond to elder abuse? Discuss the difficulties that victims may have in suing criminal justice agencies for breach of their statutory duties.

Chapter 14

Conclusion – a victims’ rights model for the criminal process

The second part of this book has shown that, while the absence of a discourse of victims’ rights has made little difference to the provision of services to victims outside the criminal justice system, such as support and compensation, it has impeded the empowerment of victims within the system itself. Drawing on the views of critical victimologists that victims’ agency must be harnessed in devising strategies for change, such as victims’ rights (see Chapter 2), part two of the book has contended that the recognition of such rights is necessary in order to enhance the quality of victims’ experiences of the criminal justice system. This chapter provides a synopsis of the primary conclusions reached in part two and delineates the contours of a victims’ rights model that it contends ought to inform the criminal process. Despite the absence of a victims’ rights discourse, the UK has a commendable record of services to victims outside the criminal justice system. With the assistance of Victim Support and other agencies, it has earned the reputation of providing the most effective support and assistance to victims in Europe (see Chapter 8). In addition, apart from restrictions in the computation of criminal injuries relating to payments for special expenses and loss of earnings for certain victims, its Criminal Injuries Compensation Scheme complies with the European Convention on the Compensation of Victims of Violent Crimes 1983 and is regarded as the most generous scheme in Europe (see Chapter 11). However, an analysis of its record of achievement regarding the empowerment of victims within the criminal justice system reveals mixed results. On the one hand, the duties imposed on criminal justice agencies in terms of the Code of Practice for Victims of Crime 2005 (the Victims’ Code) to provide victims with information, respect and recognition, and protection comply with the requirements of the Framework Decision on the Standing of Victims in Criminal Proceedings (2001/220/JHA) (see Chapter 9). The measures to assist vulnerable victims to testify in court contained in the Youth Justice and Criminal Evidence Act 1999 (YJCEA), such as special measures and the prohibition of crossexamination by the defendant in person, as well as the hearsay provisions in the Criminal Justice Act 2003 (CJA 2003), also comply with these requirements (see Chapter 9).

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On the other hand, however, the fact that the Victims’ Code is not enforceable and most of the measures in the YJCEA and CJA 2003 are subject to judicial discretion has created barriers to their effectiveness for victims (see Chapter 9). The absence of adequate protection for victims from the ordeal of cross-examination by defence counsel and the reinstatement of judicial discretion to admit sexual history evidence by the House of Lords in R v A 1 has impeded the elimination of secondary victimisation experienced by certain victims, such as victims of rape and child abuse. In addition, the adversarial contest between prosecution and defence as traditionally conceived, which restricts the status of victims to mere state witnesses with no legal standing in pre-trial or trial proceedings, compounds their experiences of secondary victimisation. The passive victim participation permitted by Victim Personal Statements does not remove or reduce such victimisation (see Chapter 10). Furthermore, despite recent policies to improve criminal justice responses to victims from unequal social groups, such as victims of gender-based violence, racially and religiously motivated crime, and homophobic and transphobic crime, evidence of insensitive and discriminatory attitudes and practices on the part of criminal justice agencies, particularly the police, persists (see Chapters 4, 5, 6 and 13). Significantly, victims of elder abuse have received little attention from criminal justice agencies (see Chapters 6 and 13). While anti-discrimination law and human rights jurisprudence provide remedies for victims who experience discrimination by criminal justice agencies based on gender, race, religion and sexual orientation, no remedies exist for discrimination based on gender identity or age. Moreover, the remedies that do exist are fragmented, being found in different statutes, and are not amenable to claims of intersectional discrimination, thus failing to accommodate the experiences of minority ethnic women (see Chapter 13). In a bid to empower victims and to overcome the problem of secondary victimisation, part two of the book has advocated the adoption of a victims’ rights model that encompasses three tiers. The first tier comprises a recognition that the rights of victims flow from their fundamental human rights. This relationship between victims’ rights and human rights has been recognised by the Council of Europe in Recommendation Rec (2006) 8 on Assistance to Crime Victims 2006 (see article 2). It also informs the rights, which include the right to support and assistance, information, respect and recognition, protection and participation, enshrined in the Framework Decision (see Chapter 7). Although the Framework Decision is binding on Member States, the barrier to its effectiveness in the UK relates to victims’ lack of standing to enforce its provisions in court. In order to overcome this barrier, Chapter 7 has contended that such standing ought to be granted. This may be achieved by the UK making a declaration recognising the jurisdiction of the European Court of Justice

1 R v A (No. 2) [2001] 2 Cr App R 21.

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(ECJ) ‘to give preliminary rulings’ on framework decisions as well as on measures giving effect to them (articles 35(1) and (2) of the Treaty on European Union). In accordance with the ECJ’s decision in Criminal Proceedings Against Pupino,2 this jurisdiction will clothe victims with legal standing to invoke the Framework Decision in English courts to ensure that their rights are upheld. As an alternative or in addition to the recognition of the ECJ’s jurisdiction, Chapter 7 has argued that the rights in the Framework Decision may be included in legislation giving victims legal standing, as has occurred in the US in terms of the Crime Victims’ Rights Act 2004 (CVRA).3 Such legislative provisions would enable victims to enforce compliance by criminal justice agencies with their duties, such as those in the Victims’ Code, by court action. As is the case in the CVRA, courts could be required to enforce victims’ rights forthwith, viz during the criminal proceedings themselves (Beloof, 2005, p. 343). In addition, the provisions of the YJCEA, such as those pertaining to special measures, may be amended to grant victims a right to these measures, which could also be enforced during the criminal proceedings. The recognition of enforceable rights and legal standing for victims would contribute significantly to the empowerment of victims and the reduction of secondary victimisation in the criminal justice process. However, in view of the persistence of discriminatory attitudes and practices, as well as the dearth of responses to elder abuse by criminal justice agencies (see above), victims from unequal social groups may not be able to exercise these rights effectively. The second tier of the victims’ rights model advocated in part two of this book accordingly envisages the correlation of the above rights with the right to freedom from discrimination, based on a recognition of the link between victimisation and discrimination. This link has been highlighted by the injunction in Rec (2006) 8 that measures must be ‘made available to victims without discrimination’ (see article 2) but is not reflected systematically in English law, despite criminal justice policies requiring improved responses to victims from unequal social groups (see Chapter 13). Furthermore, although anti-discrimination law and human rights jurisprudence apply to victims from some of these groups, transgender and elderly victims are not covered and the law is dispersed across different statutes (see above). Drawing on current government proposals (Communities and Local Government, 2007), Chapter 13 has accordingly advocated the revision of anti-discrimination law. The prohibition of unlawful discrimination by public authorities should be extended to all grounds of discrimination, including gender identity and age, and should be contained in a single statute, thereby facilitating claims of intersectional discrimination. In addition, a right to

2 [2005] 3 WLR 1102 at para 38. 3 Incorporated into Justice for All Act of 2004, Pub. L. No. 108–405.

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freedom from discrimination in the enjoyment of the above victims’ rights ought to be recognised. However, the introduction of victims’ rights giving victims legal standing, albeit supplemented by anti-discrimination law, is not enough in and of itself to empower victims, whose status is that of mere witnesses for the state. The third tier thus encompasses the recognition of procedural rights for victims in pretrial and trial proceedings. Drawing on German and Swedish law, Chapter 10 has advocated the adoption of the auxiliary prosecution procedure for victims of serious offences. This procedure clothes victims with party status and affords them several procedural rights, including the rights to legal representation, to object to judicial orders and questions from counsel, and to apply to have evidence adduced. In addition, it has contended that, although victims of less serious offences ought to retain the status of prosecution witnesses, they should have the right to legal representation. Such procedural rights will contribute significantly to the reduction of secondary victimisation in the pre-trial process as well as the trial itself. Amongst other things, lawyers will act as a protective bulwark between victims and defence counsel during cross-examination and will be able to object to defence applications to lead sexual history evidence. However, in order to facilitate access to such lawyers by victims who cannot afford legal costs, they ought to be state-funded, as is the case in Sweden and Germany. Chapter 10 has argued that objections to the recognition of party status and legal representation for victims in the English adversarial system, based on concerns that defendants’ right to a fair trial will be infringed, find little support in the jurisprudence of the European Court of Human Rights. By contrast, the ECtHR has emphasised that a fair trial requires the interests of both defendants and victims to be considered, regarding this as consistent with adversarial principles.4 It also accepts victims’ lawyers without question.5 In addition, Chapter 10 has highlighted the fact that jurisdictions with adversarial trials, such as Sweden, recognise procedural rights for victims and that the US, which is particularly committed to adversarialism, nonetheless permits victims’ lawyers. It has thus contended that objections to procedural rights for victims are founded on traditional conceptions of adversarialism rather than on any real incompatibility between such rights and the adversarial process. Although part two of the book has advocated the adoption of the above victims’ rights model, it has nevertheless acknowledged that rights, in and of themselves, are not able to transform attitudes and practices by criminal justice agencies that may be resistant to change. It has accordingly emphasised the

4 5

See Doorson v The Netherlands (1996) 22 EHRR 330. In SN v Sweden (2004) 39 EHRR 13, for example, the fact that the victim had been represented by a lawyer was of no consequence in the court’s decision that the defendant had received a fair trial (see Chapter 7).

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importance of training for the police, the Crown Prosecution Service and the judiciary, particularly as regards the dynamics of gender-based violence, racially and religiously motivated crime and homophobic and transphobic victimisation, and has shown that the UK is making concerted efforts to ensure that such training takes place (see Chapter 13). While the discourse of victims’ rights may be strong at the level of the Council of Europe as well as in many European jurisdictions, opposition to the adoption in the UK of a victims’ rights model in the manner suggested in this book is widespread (see Chapter 10). However, the following dictum by Lord Rodger of Earlsferry creates hope that change may eventually be contemplated: [T]he adversarial form of trial [only] emerged when, in the course of the eighteenth and early nineteenth centuries, it became common for counsel to be instructed. Since the forms of trial have evolved . . . over the centuries, there is no reason to suppose that today’s norm represents the ultimate state of perfection or that the procedures will not evolve further.6

6

R (on the application of D) v Camberwell Green Youth Court; R (Director of Public Prosecutions) v Camberwell Green Youth Court [2005] 2 Cr App R 1 at para 9.

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Index

adhesion proceedings 174–5, 186, 189, 193–7, 211–12 adversarial or inquisitorial systems 173, 181–2, 185–91, 193–4, 196–8 advocacy 28, 144, 146–8, 151, 153 Aldana-Pindell, R 261 Allen, S 60 Alpert, GP 96 Ashworth, A 179, 181 auxiliary prosecution procedure 174, 186, 189–98, 237, 268 Baker, A 262 Barlow, P 103 Beloof, DE 184, 185 Bennett, T 44 black and minority ethnic groups 75–100, 242–50 see also police stops and searches of minority ethnic persons advocacy 153 aggravated offences 245–6 anti-discrimination legislation 259–60 attrition, rate of 89, 250 British Crime Survey 75–80, 82, 87, 89 charges, reduction in 89, 248–9 class 86 court process 249–50 distribution of crime 79–82 domestic violence 25–8, 67–8, 69, 152, 241–2, 258, 262–3 Far Right organisations 81, 85–6 fear of crime 46, 47, 77–8, 82–4 feminist theory 25–8 Human Rights Act 1998 261 impact on victims 82–5 incitement to racial and religious hatred 244–6 institutional racism 75, 88, 243, 246–7

Islamophobia 84–5, 99, 152–3, 243–4, 246 juries 249 legal aid 243 lesbian, gay, bisexual and transgender victims 103–5 lifestyle, restrictions on 82–3 low level harassment, under-reporting of 81–2 Macpherson Report 75, 78–9, 81, 87–8, 98–9, 246–8 mixed group 76–7 Muslim Safety Forum 152–3 organisations 152–3, 242–4 plea bargaining 248–9 police 69, 87–9, 241–4, 246–50, 259 prison, male rape in 61 prosecutions 241, 244, 248–9 public authorities, definition and duties of 259–60 rape and sexual assault victims 61, 151 religiously motivated crime 84–5, 89, 99, 152–3, 243–50 restorative justice 230–1 rural areas 83–4, 89, 248 secondary victimisation 87–9, 247, 250 sentencing 244, 246 support and assistance 152–3 surveys 75–82, 84 training 246, 248–9 under-reporting 81–2 white victimisation 80 witnesses, anonymity of 249 blaming victims 14–16, 24, 26–7, 58–9 Bowling, B 79, 81, 87 Box, S 21 Braithwaite, J 5–6, 217, 218, 223 Bright, J 42

294

Index

Brimicombe, AJ 79 British Crime Survey 16–17, 34–7, 43, 46–7, 52, 62, 75–82, 87, 89 Brogden, M 107–8, 112 ‘broken windows’ thesis 19–20 Budd, T 114 burglary, impact of 44–5 Butler, RP 186 Cammiss, S 71 Cares, AC 64–5 Cassell, BG 185 Chakraborti, N 84–5, 89, 98 charges, reduction on 71, 89, 248–9 children compensation 203–6, 208–9, 214 cross-examination 165–6, 171 inhuman or degrading treatment 127–8, 138–9 secondary victimisation 266 sexual abuse 3, 127–8, 138–9, 203–6, 208–9, 214, 266 witnesses 136, 161–2, 165–6, 171 Clancy, A 78, 80–2 class 21, 38, 86, 98–9 compensation 3, 133–4, 174–6, 199–214 see also criminal injuries compensation adhesion proceedings 174, 186, 189, 193–5 children, sexual offences against 203–6, 208–9, 214 compensation orders 193–4, 201, 210–13 participation of victims 174–7, 186, 189, 193–5 restorative justice 217 surcharges 213 Comstock, GA 104, 106 conservative criminology 17–20, 30, 38 consumers, offences against 40, 41, 43 corporate or white collar crime 16–17, 20–1, 39–43, 49, 140–2 British Crime Survey 17 Cotton, J 36–7 Council of Europe 141–4, 155–7, 218–20, 266 black and minority ethnic groups 243–4 compensation 3, 176, 200–1 elderly victims 254–5, 258 gender-based victimisation 234

information to victims, provision of 120–1, 155–6 lesbian, gay, bisexual and transgender victims 251 mediation 218–19 participation of victims 176–7 standing of victims in trials 4–5, 120 support and assistance for victims 121, 143–4 court process 159–69 see also pre-trial process black and minority ethnic groups 249–50 domestic violence 72 information, entitlement to 159–60 rape and sexual assault 58–9, 61–2, 237–9 secondary victimisation 48, 161 Crenshaw, K 25 Cretney, A 71, 72 criminal injuries compensation 1–2, 134, 201–10 computation of compensation 207–9 deductions 201, 207–8 dependents 207 eligibility 203–6 European Court of Human Rights 204–5 ex gratia payments 201 intoxication of victim 208 recovery orders 213–14 same roof principle 204–5, 208 tariff scheme 199, 202–3, 207–10 Victim Support 147 criminological theories 13–14 critical victimology 4, 25–9, 31 cross-examination 4, 48, 59, 61–2, 163–6, 171, 182, 191–2 Crown Prosecution Service 5, 159, 260 anti-discrimination legislation 258–63 black and minority ethnic groups 241, 248–9 Code for Crown Prosecutors 177–8 Code of Practice for Victims of Crime 2005 158, 159 charging 71, 159 decisions to prosecute 131–2, 177–8 domestic violence 68–71, 239–41 information, provision of 158–9 lesbian, gay, bisexual and transgender victims 253–4 participation of victims 177–9

Index pleas, decisions to accept 178–9 rape and sexual assault 236–7 standing to sue 260 witnesses, protection of vulnerable and intimidated 159 Currie, Elliott 112 D’Augelli, AR 104–5 Davis, G 71, 72 Dawson, M 240 decision-making control 174, 177–9, 197–8 defendants rights 184–5, 195–8, 268 delay, providing information on 159 development of victimology 1–6 Dignan, J 13, 47–8, 217, 218, 225 Dinovitzer, R 240 Doak, J 123 Docking, M 81, 89 domestic violence 51, 62–72, 238–42 arrests 3, 5, 68–71, 238–9 attrition, rate of 70–1, 258 battered woman syndrome 66 black and minority ethnic women 25–6, 67–8, 69, 151–2, 241–2, 258, 262–3 charges, reduction in 71 Code of Practice for Victims of Crime 2005 239 court process 72 Crown Prosecution Service 68–71, 239–41 Domestic Violence Courts and Domestic Violence Units 238, 240 evidence-gathering 71, 239 feminist theory 24–8, 30–1 financial losses and homelessness 67 honour (izzat) 25–6, 68 immigrants 68, 235, 241–2, 262–3 impact on victims 62, 65–8 institutional racism 68 intersectionality 25–6 lesbian, gay, bisexual and transgender victims 103 male victims 62–5, 66 police 68–71, 238–42 positivist victimology 16 public and private spheres 24, 27–9 restorative justice 230–1 secondary victimisation 68–72, 238 self-blame 65 sentencing 72

295

separation assault theory 67 special measures directions 239 statistics 62–3 stereotyping 63–4 support and assistance 240–1 surveys 36, 62 training 240–1 under-reporting 63–4 Dubourg, R 54 Dunbar, E 104 EU law black and minority ethnic groups 243 European Court of Justice, preliminary rulings of 122, 140, 141–2, 267 Framework Decision on the Standing of Victims in Criminal Proceedings (2001) 143, 155–8, 176–7, 199, 210–11, 218–19, 232, 266–7 victims’ rights 121–2, 129–30, 142 economic impact of victimisation 21–2, 30, 45, 54, 67 Edwards, I 174 effective remedy, right to an 258–60 elderly victims 107–17, 254–8, 263–4, 266 age discrimination 260–1 anti-discrimination legislation 260–1 distraction burglaries 114–15 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 254–6 fear of crime 114–15 financial abuse 109–11 gender 109 immigrants 110–11 impact on victims 111, 115 inhuman or degrading treatment 254–5 market society, impact of 112–13 medicines, use of 111–12 neglect 109–11 non-Western societies 107, 108 partners, family members, neighbours and acquaintances, by 110 private homes or private institutions, abuse in 109–13, 116, 255, 257 prosecutions 257 public, victimisation in 113–15 secondary victimisation 254 serial offenders 112–13 special measures 254 surveys 114 under-reporting 101, 111, 113, 116

296

Index

elderly victims – Contd. United States 256–8 witnesses 254 Ellison, L 59, 162 employment relationship, crimes arising out of the 41, 42, 43 Engel, RS 99 environmental crimes 41, 42–3 Erez, E 181–2 ethnic groups see black and minority ethnic groups Europe see Council of Europe; European Convention for the Protection of Human Rightsand Fundamental Freedoms 1950 and European Court of Human Rights; participation of victims in Europe European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and European Court of Human Rights 125–8, 137–9 see also fair trials adhesion proceedings 196–7 adversarial system 197 criminal injuries compensation 204–5 elderly victims 254–6 hearsay 124 Human Rights Act 1998 261–2 lawful chastisement 127 lesbian, gay, bisexual and transgender victims 251–2 participation of victims 196–7 special measures 125, 136–7 torture or inhuman or degrading treatment, freedom from 127–8, 138–9 victims’ rights 119–20, 122–8 witnesses 124–5 evidence 163–5, 249, 265 see also hearsay; special measures for witnesses; witnesses fair trials 133–7, 162–3, 166–8, 182, 196–7, 268 Family Group Conferences (FGCs) 225–6, 229 Family Impact Statements by families of homicide victims 5, 173, 182–3 Farrell, G 43–4, 97–8 Fattah, EA 15 fear of crime 39, 46–7, 77–8, 82–4, 114–15 Felson, RB 64–5, 70

feminist theory 23–7 see also radical feminist theory blaming victims 24 critical theory 25–8, 31, 151–2 domestic violence 24–8, 30 intersectionality 25 patriarchy, institutions of 24–5, 27–8, 31 positivist criminology 24 radical feminist theory 2–3, 24–8 public and private spheres 24 rape and sexual assault 151 surveys 40 Fergusson, DM 64–5 financial crime 41, 109–10 Finch, E 58, 237 Fitzgerald. M 76, 78–9, 91–2 Foucault, Michel 58 Framework Decision on the Standing of Victims in Criminal Proceedings (2001) 143, 155–8, 176–7, 199, 210–11, 218–19, 232, 266–7 Frazer, SM 102–3, 106 Fry, Margery 1–2 Gardner, H 83 Garland, J 84, 89 Garofalo, J 15 gender-based victimisation 233–42 see also domestic violence; rape and sexual assault anti-discrimination legislation 259 Convention on the Elimination of All Forms of Discrimination Against Women 1979 1979 elderly victims 109 fear of crime 47 forced marriage 152 lesbian, gay, bisexual and transgender victims 104, 253 restorative justice 230–1 secondary victimisation, police and 234–5 support and assistance 151–2 transgender victims 253 Germany 174, 186–8, 190–2, 195–6, 268 Giddens, A 27 Gill, A 26 Goergen, T 111, 112 Goodall, K 245 Goodey, J 13, 196, 244 Gottfredson, M 15

Index Grady, A 63–4 Gray, J 90–1 Hale, C 76, 78–9 Hall, N 87, 89, 248 Hanson, B 103 hearsay evidence 124, 135–6, 167–8, 239 Herrnstein, RJ 17 Hester, M 70–1 Hillyard, P 29–30 Hindelang, M 15 Hirschi, Travis 86 Hoare, J 36–7 Hopkins-Burke, R 87 Hough, C 38 Hoyle, C 69, 71, 224, 238–41 human rights see European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and European Court of Human Rights; Human Rights Act 1998 Human Rights Act 1998 133, 137, 239, 261–3 Idriss, MM 246 Iecovich, E 110–11 incivilities 19–20, 30 information, provision of 120–1, 132–3, 144–6, 155–6, 158–60, 169–71, 174–5 inhuman or degrading treatment 127–8, 138–9, 250–1, 254–5 intersectional discrimination 25–6, 103–4, 260, 267–8 Jansson, K 62–3, 65, 77, 82 Johnson, MP 64 judicial review 178, 183 juries 237–9, 249 Karman, A 14 Kelling, IL 19 Kelly, L 56 Kibble, N 164 King, M 60 Knowles, JG 61 Lachs, M 112 landlords 40 Lange, JE 96 Lea, John 21–3, 55, 56, 98 Lees, S 58

297

left realist criminology 21–3, 27, 30, 38–9, 46 legal aid 176, 190, 194–5, 243 legal representation of victims 173–7, 185–90, 194–7, 237, 268–9 lesbian, gay, bisexual and transgender victims 101–7, 115–16, 250–4 advocacy 153–4 aggravating factors 252 anti-discrimination legislation 260 attrition, rate of 254, 258 black and minority ethnic groups 103–5 Crown Prosecution Service 253–4 domestic violence 103 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 251–2 gender 104, 253 impact on victims 105–6 inhuman or degrading treatment 250–1 International Covenant on Civil and Political Rights 1966 250, 254 intersectionality 103–4 police 106–7, 153–4, 252–3 repeat victimisation 103 schools, bullying in 105, 154 secondary victimisation 106–7, 153 sentencing 251–2 support and assistance 153–4 surveys 102, 106 training 252 transgender victims 103, 106, 115–16, 153–4, 253, 260 under-reporting 101, 107, 252 United States 251 Lichtenberg, I 97 life, right to 125–6, 133, 137–8 local crime surveys 38–40 MacKay, A 102–3, 105 MacKinnon, CA 23 Macpherson Report 75, 78–9, 81, 87–8, 98–9, 246–8 Maguire, M 35, 44 Malcolm, B 83 male rape 59–62 male victims of domestic violence 62–5, 66 Malik, M 246 Mama, A 67 Maroney, T 103

298

Index

Marxist victimology 14, 20–2, 27, 30 Matthews, Roger 21–2 Mawby, R 2, 26–8, 44–5 Maxwell, G 225 Mayhew, P 38 Maynard, W 79 mediation 218–22 Mendelsohn, Benjamin 13, 14 Merton, Robert K 86 Mezey, G 60 Miller, J 92–4 Mirrlees-Black, C 63, 65 Moran, CJ 102, 103, 105, 253 Morris, A 225 Morrison, C 102–3, 105 Munro, VE 58–9, 237 Muslims 84–5, 99, 152–3, 243–4, 246 national crime surveys 34–8, 40 Netherlands, victim participation in 174, 186, 189, 193–5 Newburn, T 97 Niedling, D 175 Nijhar, P 107–8, 112 Novak, KJ 96 O’Brian, WE 136, 167 O’Keefe, M 110, 111, 113 participation of victims 173–98 see also participation of victims in Europe; participation of victims in United States adhesion 174–5, 186, 189, 193–7, 211–12 adversarial and inquisitorial systems 173, 185–98 auxiliary prosecution procedure 174, 186, 189–98, 268 compensation 174–5, 176, 193–5 consultation 174, 175 cross-examination 191, 192 Crown Prosecution Service 177–9 decision-making control 174, 177–9, 197–8 ‘defendant’s’ rights 184, 185, 195–8 Europe 173–4, 186–97 expression 174, 175 fair trials 196–7, 268 Family Impact Statements (FIS) 173, 182–3

Germany 174, 186, 187–8, 190–2, 195–6, 268 information, provision of 174, 175 lawyers for victims, use of 173–7, 185–6, 188, 189–90, 194–7, 268 legal aid 176, 190, 194–5 Netherlands, adhesion proceedings in 174, 186, 189, 193–5 pleas, decisions to accept 178–9, 183–4 pre-trial stage 187–9, 194 prosecute, decisions to 174, 177–8, 183 restorative justice 215–16 secondary victimisation 173–4, 179, 195–6, 198 sentencing 175, 184–5, 192, 197 Sweden 174, 187, 188, 189–90, 192, 195, 268 United States 173, 175–6, 183–6 Victim Impact Statements/Victim Personal Statements 173–7, 179–82, 184 Patterson, A 47 Pearce, F 21, 39 Pease, K 43–4 Perry, B 83, 86–7 Phillips, C 82–3, 88, 90 Pilkington, NW 104–6 Pizzey, Erin 25 pleas, decisions to accept 157–8, 178–9, 183–4, 248–9 police 5, 171 anti-discrimination legislation 259–60 black and minority ethnic groups 69, 87–99, 241–4, 248–50, 259 class, stop and search and 98–9 domestic violence 68–71, 238–42 gender-based victimisation 68–71, 234–5, 238–42 immunity 123, 125–6, 137–80 information, provision of 158 lesbian, gay, bisexual and transgender victims 106–7, 153, 252–3 pre-trial process 157, 158 racial profiling, stop and search and 95–6 rape and sexual assault 55–8, 235–6 restorative justice conferencing 222–4 stereotyping 88 state victimisation 90–9 stops and searches of minority ethnic persons 92–9 surveys 90–1

Index training 259 transgender people 106 victims’ rights 137–8, 158 vulnerable and intimidated witnesses, protection of 158 positivist victimology 14–17, 24, 26–7, 33 precipitation 14–15, 26–7 pre-trial process 157–9 prison, male rape in 60–1 private and family life, right to respect for 128, 139–41 property crime 36 prosecutions 42, 131–2, 174, 177–8, 183, 241, 244, 257 see also Crown Prosecution Service public authorities 133, 259–61 Puchkov, PV 110 Qureshi, F 97–8 race see black and minority ethnic groups radical criminology and victimology 20–3, 27, 41 rape and sexual assault 51–62, 235–8 advocacy 151 alcohol and drugs 58–9 attrition, rate of 55–8, 61, 72–3, 235, 236, 238, 258, 263 auxiliary prosecutors 237 blaming victims 58–9 court process 58–9, 61–2, 237–9 cross-examination 4, 48, 59, 61–2, 165–6, 171 Crown Prosecution Service 236–7 false allegations 56 financial costs 54 forensic services 235–6 impact on victims 45, 53–4 judiciary, training of 237 juries, rape myths and gender stereotyping and 237–8 lawyers for victims 237 male rape 59–62 minority ethnic victims 61, 151 ‘no criming’ and ‘no further action’ 55–7 police 55–8, 235–6 post-traumatic stress disorder (PTSD) or rape trauma syndrome 53, 237–8 prison, rape of men in 60–1 Rape Crisis 2, 3, 57, 151

299

release of sexual offenders 169–71 secondary victimisation 55–9, 61–2, 72–3, 235, 237–8, 266 Sexual Assault Referral Centres (SARCs) 235–6 sexual history evidence, restrictions on 163–5, 265 Southall Black Sisters 151–2 special measures for witnesses 161, 162 spectacle of degradation 58 surveys 51–2 under-reporting 52, 55, 59–60, 141 recovery orders 213–14 Redmayne, M 179 referral orders 227–8 Reid, T 79 release of sexual and violent offenders 131–3, 169–71 religiously motivated crime 84–5, 89, 99, 152–3, 243–50 reparation orders 212, 226 repeat victimisation or revictimisation 43–4, 103 reporting restrictions 168–9 restorative justice 5–6, 215–31 coercion 217, 228–9 conferencing, police and 222–4 domestic violence 230–1 Family Group Conferences (FGCs) 225–6, 229 gender-based violence 230–1 mediation and meetings 216–22 racially motivated and homophobic crime 230–1 referral orders 227–8 reintegrative shaming 223–4 reparation orders 212, 226 restitution 224 secondary victimisation 229 unequal social groups 215, 230–1 young offenders 212, 220, 222–3, 226–8 Robinson, V 83 Rock, P 179 Rogers, L 181 Ruiz, J 95 Rumney, PNS 61 Salisbury, H 78 Sampson, A 82–3, 88, 89 Sanders, A 69, 71, 181, 197, 238–41 Schwendinger, H and Schwendinger, J 28

300

Index

secondary victimisation 33, 47–9, 156, 266–7 black and minority ethnic groups 87–9, 247, 250 child sexual abuse 266 criminal justice service, victim’s role in 47–9, 161, 165–6 domestic violence 68–72, 238 elderly victims 254 gender-based victimisation 234–5 legal representation 268 lesbian, gay, bisexual and transgender victims 106–7, 153 participation of victims 173–4, 179, 195–6, 198 pleas, decisions to accept 179 police 234–5 rape and sexual assault victims 55–9, 61–2, 72–3, 163–5, 235, 237–8, 266 restorative justice 229 sexual assault see rape and sexual assault sexual orientation see lesbian, gay, bisexual and transgender victims Shafer, JA 96 Shapland, J 45 Sharpe, AN 103, 253 Sibbitt, R 79, 85, 87–8 Slapper, G 16, 21, 43 Smith, DJ 90–1 Southall Black Sisters 151–2 Spalek, B 37, 141 special measures for witnesses 3–4, 125, 136–7, 150, 157, 161–3, 171, 239, 254, 265 Spencer, JR 196 stereotyping 48, 63–4, 88, 237–8 stops and search see police stop and searches of minority ethnic persons Sugarman, N 209 support and assistance 143–54 see also Victim Support surveys 3, 33–40, 49 see also British Crime Survey black and minority ethnic groups 75–82, 84 elderly victims 114 fear of crime 39, 46 lesbian, gay, bisexual and transgender victims 102, 106 police stops and searches of minority ethnic persons 90–1 rape and sexual assault 51–2

Sweden, victim participation in 174, 187–90, 192, 195, 268 Taylor, I 20–1 Temkin, J 163, 165 theft 37 theories of victimology 13–31 Thorpe, K 47 Tijerino, AA 184 Tombs, S 16, 21, 29, 41, 43 transgender victims see lesbian, gay, bisexual and transgender victims Tuffin, R 81, 89 under-reporting 34, 49, 195–6 black and minority ethnic groups 81–2 domestic violence 63–4 elderly victims 101, 111, 113, 116 lesbian, gay, bisexual and transgender victims 101, 107, 252 rape and sexual assault victims 52, 55, 59–60, 141 Upson, A 78 vandalism 37 vehicle-related crime 36 Verdun-Jones, SN 184 victim participation see participation of victims Victim Personal Statements/Victim Impact Statements 5, 173–7, 179–84 Victim Support 2, 4, 143–9, 153, 154, 265 victimisation 33–50 victims’ rights 28, 31, 119–42, 265–9 Code of Practice for Victims of Crime 2005 130–1, 140–1, 147, 155, 158–61, 169–71, 178, 239, 265–6 corporate crime 140–1, 142 court, role of the 131–9 damages 133–4 EU law 121–2, 129–30, 142 enforcement 119, 129–30, 139–40, 147, 154 fair trial, independent civil right to a 133–7 Human Rights Act 1998 133, 137, 139 judicial review 131–3 life, right to 137–8 model for the criminal process 265–9 police, immunity of the 137–8 private and family life, right to respect for 139

Index secondary victimisation 267 standing of victims 4–5, 120, 258–61, 267–8 torture and inhuman or degrading treatment or punishment 138–9 under-reporting of rape and sexual abuse 141 Victim’s Charters 4, 129–30 Von Hentig, Hans 13, 14 Waddington, PAJ 94–5 Walgrave, L 216, 217, 229 Walker, A 66–7 Walklate, S 2, 14, 26–8, 48 Walther, S 196 Walton, P 20–1 Wemmers, J 197 Whyte, D 21 Wilson, James Q 17–19 Withrow, BC 97 witnesses anonymity 124, 134–5, 249 black and minority ethnic groups 249 Code of Practice for Victims of Crime 2005 160 children 3, 136, 160–2, 165–6, 171 Crown Prosecution Service 159

301

elderly victims 254 European Convention on Human Rights 124, 125 fair trials 134–6 information, entitlement to 161 police 158 rape and sexual assault 3, 237 release of sexual and violent offenders 170 special measures for witnesses 3–4, 125, 136–7, 150, 157, 161–3, 171, 239, 254, 265 statements 125, 135–6 support and assistance 149–50 vulnerable and intimidated witnesses, protection of 156–8 Witness Care Units and Witness Service 4, 144, 149–50, 160, 161, 170 Woessner, M 95 Wolfgang, ME 13 Young, Jock 20–3 young offenders 212, 220–3, 226–8 Zedner, L 13, 46 zemiology or study of social harm 28–30, 31