Restoring The Balance
THE RIGHTS of victims need to be enshrined in law and significant change is needed to stop perpetrators from manipulating the court system for their own gains – that’s the verdict of a comprehensive report being released today (Tuesday 29 September 2015).
The report, (summarised below) is being released as part of the Restoring the Balance campaign in England and Wales. The campaign was launched at 36 Bedford Row, London by keynote speaker Sir Keir Starmer KCB QC, survivors of stalking and domestic abuse and experts in the field of criminal, family and civil justice.
Restoring the Balance seeks to answer the question of how to stop controlling, obsessive, abusive perpetrators using the law to cause emotional harm to vulnerable victims, whilst ensuring the right to a fair hearing is maintained as required under article 6 of the Human Rights Act 1998.
Claire Waxman, founder of Voice4Victims and a survivor of stalking, has campaigned for over four years for change to the court system in order to stop others from experiencing the trauma caused by stalkers making vexatious court complaints. In March 2015 Voice4Victims joined with Veritas Justice and Suzy Lamplugh Trust, who also work to support victims of stalking, to launch the campaign at the Chambers of Richard Wilson QC and William Harbage QC. Restoring the Balance runs parallel to the campaign of the same name in Scotland, which was launched in December 2014 and is being spearheaded by Ann Moulds of Action Scotland Against Stalking and Kim Leslie of Digby Brown Solicitors.
1 in 12 people who contact the National Stalking Helpline report experiencing vexatious complaints as part of the campaign of abuse against them. Cases reported to the helpline include incidents in which stalkers have brought financial claims against victims, even when no financial transactions have ever taken place between the two parties. Stalkers have also been known to make false accusations against their victims of crimes such as theft, fraud, or physical assault, and they have made claims of professional misconduct to professional disciplinary bodies. All of this is done either to cause maximum distress to the victim or to ensure that some level of contact is maintained between the two of them.
Claire Waxman, of Voice4Victims said: “As a victim of stalking, you are already being put through the most horrendous and stressful ordeal and then to have the perpetrator try and use the legal system to attack you with false allegations or vexatious complaints, feels like the final straw.”
Another common route for the continuation of stalking or domestic abuse is through access to the family court system where in some cases perpetrators who have previously expressed little or no interest in their child’s care or upbringing issue applications for a variety of orders to maintain contact with the victim and continue to exert power and control over them and their family.
Sam Taylor, of Veritas Justice said: “These problems are frequently exacerbated by the disconnection between the civil, criminal and family law court system, which hinders a co-ordinated response and places families at further risk.
These problems are compounded by the fact there are no rights for victims of crime enshrined in law. Whilst the Ministry of Justice has produced a document outlining best practice in supporting victims through the criminal justice system, called the Code of Practice for Victims of Crime (often shortened to ‘Victims’ Code’), this only provides a framework for a minimum standard of service a victim of crime should receive.
In many cases those affected felt judicial ignorance about stalking and domestic abuse, including a lack of understanding of when contact with the victim or children was about further stalking, abuse and control, meant the courts did not recognise the role they were playing in perpetuating the cycle of abuse.
Sir Keir Starmer KCB QC, stressed that whilst the system as it stands is not good enough, this is not because of a lack of care or empathy from the vast majority of those who work within it. Indeed, he believes in order to begin to answer this question we need to consider whether the framework and approaches that underpin the court system are fit for purpose.
Claire Waxman added: “Whilst we must consider that perpetrators do have a right of access to courts, it is not one that has ever been regarded as absolute and we must be challenging this when there is evidence of it being used as an agent for harassment and stalking. It’s vital the system recognises this so that they are upholding the victims’ rights to protection from this ill-treatment”
The report identifies a number of key issues that need to be addressed in order to ensure the court system is more balanced towards the needs of all those who are engaged in it. Problems identified include:
As a result of the ‘Legal Aid, Sentencing and Punishment of Offenders Act 2012’ many vulnerable victims of abuse are unable to access justice
The disconnection between the civil, family and criminal courts is creating inconsistencies which offenders are using to their advantage
Judges are not sufficiently intervening pro-actively in complex cases to manage vexatious complaints
There is no formal funded mechanism for victim support in the civil or family court systems
All victims of crime who enter the family, civil or criminal courts are being placed in a system that was never created with their needs in mind
Rachel Griffin, Director of Suzy Lamplugh Trust, said: “This report has thrown up some very important issues and concerns but it is just the starting point. Now we need to look at gathering even more evidence and working with the judicial system to see how we make can make restoring the balance a reality.”
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Report Summary
The Court System
Sir Keir Starmer KCB QC delivered a key note speech in which he drew upon his experience as a human rights barrister and former Director of Public Prosecutions to explore why the court system is currently not working for a large number of those who use it, including the most vulnerable.
Broadly speaking, Sir Keir said the main concerns raised by victims about the court system are:
The way in which courts are accessed
The framework of the court system
Protection from abuse
Sir Keir outlined a victim’s journey before they arrive at a criminal court. A victim of crime will have made a report to the police and during the subsequent investigation, they should be consulted and informed by various units about the progress of the case. At some point before a case reaches court a discussion should take place with the victim about whether they would like ‘Special Measures’. This means that along the route, if done correctly, there are support mechanisms in place.
Sir Keir contrasted this with civil justice in which there are two parties to proceedings who are accessing the courts in a very different way. The individual concerned could either be a defendant or claimant. These routes are very different and not as sophisticated. If an individual wants to access the court as a claimant then they have to find the resources to access the court, including finding representation. Even if that person is the victim, they are expected to take all the required steps to run the case. If the individual is the defendant then they are brought into the process and to some extent it is their job to apply to strike it out.
There is no witness and victim support service in the civil or family courts. Contrast this with a criminal justice scenario where, should the system be used appropriately, a prosecutor should protect the victim. Sir Keir asked “Whose job is it to protect a victim in civil proceedings?” The answer, he suggests, lies in part with judges taking a more pro-active part in such proceedings.
Sir Keir stated whilst the system as it stands is not good enough, this is not because of a lack of care or empathy from the vast majority of those who work within it. Indeed, he believes that in order to begin to answer this question we need to consider whether the framework and approaches that underpin the court system are fit for purpose.
The debate about the role of prosecutors and the defenders has been at the forefront of legal discussions for more than 100 years; however the concept of victims’ rights has only begun to be considered by the legal profession and Ministry of Justice relatively recently. The first Victims’ Code of Practice was launched fewer than 20 years ago and was more of a bolt on.
Sir Keir said that whilst it has been acknowledged that victims’ rights are important, there are still some major issues with appropriately and accurately recording these issues. Some who work in the criminal justice system are making assumptions about what victims want rather than listening to victims themselves.
He said: “We should start thinking about the justice system as victims’ service and entrench victims’ rights into law. “
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)
Jenny Beck spoke on the issue of Legal Aid. Jenny is a highly experienced family lawyer who has dealt with cases involving domestic abuse for 20 years. She heads up the Law Society’s Access to Justice Committee and co-chairs the Legal Aid Practitioners Group.
Jenny opened her presentation by saying that she hears the call to be protected, to be believed. She talked about recognising risk and acknowledging the level of risk is so high it cannot be ignored. Access to justice in family law impacts the most marginalised and vulnerable: “We need to find a mechanism to ensure there is a safe passage in the court system. To allow the court process itself to be a vehicle for abuse is a very dangerous thing.”
Jenny outlined the 12 legal remedies available for people who are experiencing domestic abuse. However, she went on to say that all of them are useless unless people can access them. Jenny said, “If the solutions that are available cannot be accessed, women will be killed and they will live in fear.”
The Justice Select Committee found the Legal Aid, Sentencing and Punishment Act 2012 (LASPO), which restricted access to Legal Aid, has harmed access to justice. The four aims of LASPO are:
Discourage unnecessary and adversarial litigation at public expense
Target Legal Aid to those who need it most
Making significant savings in the cost of the scheme
Deliver better overall value for money for the taxpayer
Of these aims only one, making significant savings, has been achieved. The vast majority of cuts have impacted family law. Under LASPO individuals cannot access Legal Aid assistance unless they have experienced domestic abuse and they have to have evidence of that. The victim is required to provide a medical report which they are required to pay for, which creates a gateway which must be passed through before any form of support is available to the victim. 50% of people cannot get through the gateway even though they meet the criteria for receiving Legal Aid.
Due to cuts some family lawyers are serving protective orders via text. However, Jenny is seeing cases in which the Crown Prosecution Service will not prosecute a breach of a protective order that has not been served in person.
Without improved access to Legal Aid we will not be able to readdress the balance of justice in the court system.
Two panel discussions took place during the seminar. The panel members in the first discussion were Sir Keir Starmer QCB KC, Ann Moulds, Claire Waxman and ACC Garry Shewan of Greater Manchester Police. The second panel consisted of Sir Keir Starmer QCB KC, Jenny Beck, Olivia and Sam Taylor. Both sessions were chaired by Paul Infield, Chairman of Suzy Lamplugh Trust and a barrister at 36 Bedford Row. Below is a summary of each topic of discussion.
Human Rights Act
Paul Infield asked how the problem outlined by Claire and Sam, of a convicted abuser being granted access to the court, can be legislated against in order to stop other women going through this. Sir Keir said that there is not an unqualified right for a parent to have contact with their child or access to the courts. If there is a good reason, if it is necessary and proportionate, then these rights can be restricted. Sir Keir stated that the Human Rights Act 1998 gives an answer to this question if interpreted correctly. In regard to this problem, he does not think we need more legislation; instead we need better implementation of current legislation.
Victims Law
Panel members were asked for their thoughts on the potential solutions to the problems that were outlined in the victims’ presentations. Sir Keir stated his strong belief that victims’ rights need to be enshrined in legislation otherwise remedial action will proceed a lot more slowly. This is not to say that police and prosecutors do not need more training but a legal framework of support is also required. ACC Shewan agreed that enshrining victims’ rights in law is overdue: “There has to be a point where you begin to enshrine the rights of the victim in law otherwise you are only able to go so far.
All panel members stressed the need for cross party support to achieve a Bill of Rights for victims that will endure. Claire Waxman referred to her recently drafted proposals which received cross parliamentary support at their first hearing on 4th March. She also emphasised that any victims’ legislation would need to be supported with specific training. All speakers agreed victim blaming and stereotyping is still entrenched in many of the relevant agencies and that this needs to change in order to see positive effect.
Cultural Shift
This discussion led on to a conversation about a need for a cultural shift within the family, civil and criminal court systems. Reference was made to the lessons that could be learnt from the recent revelations about the way child sexual exploitation has been handled in places like Rochdale and Rotherham. In these cases decisions were made not to prosecute based on assumptions of what a victim would or should do in cases where they had been a victim. Answers to these questions led to decisions being made on how ‘credible’ a victim would seem in the eyes of the courts.
Judges and the adversarial system
Central to changing attitudes within the court system is changing the attitudes of the judges themselves. There was much debate in both panel sessions about the need for high-quality judges who are more vocal, and willing to intervene and take robust case management decisions. In our current adversarial system judges are often in a ‘referee’ position as they oversee two parties arguing their respective cases.
In civil court cases where one party makes an allegation that the complaint is vexatious, the burden is on the individual to come to apply to strike out the claim and to prove that it is vexatious.
Paul Infield referred to the field of family law in which judges are moving towards a more inquisitorial-type system, something which is much more common on the continent.
Police and civil courts
Sir Keir identified there needs to be a much better overlap between the civil and criminal courts. The police officer in charge of Claire Waxman’s case outlined the frustration he experienced at being unable to assist Claire when her stalker was bringing vexatious civil complaints against her. He said the police have no right to address the civil court if they are not an ‘interested party’. He asked if it would be possible to make a recommendation in any new victims’ law that where there is a criminal case ongoing or restraining order in existence, the police could apply for the right to address the civil or family court. ACC Shewan responded that more work needs to be done to explore what right the police have to address the courts and how they can utilise it appropriately.
Sir Keir said that whilst the ability for police to be able to make the court aware of criminal proceedings is a good thing, he would be concerned that this could potentially let judges ‘off the hook’ and that judges should be making proactive judgements on whether a case is vexatious.