Questions
1. Do you have a favoured option for how we could extend eligibility to make a victim statement?
Please provide a reason for choosing your favoured option.
The Faculty of Advocates considers this is a matter for those involved in the development of policy and practice in this area and does not express a view.
2. To help us decide how to extend the list of current offences for which a victim statement can be made, we need to identify any potential impacts that the changes may have.
If yes, please provide further details of any potential implications you envisage.
The Faculty of Advocates considers this is a matter for those involved in the development of policy and practice in this area and does not express a view.
3. Victim statements must currently be made in writing by the victim. Do you think we should look at piloting new ways for victim statements to be made?
If no, please set out your reasons why we shouldn’t look at piloting different ways for victim statements to be made.
The Faculty of Advocates considers this is a matter for those involved in the development of policy and practice in this area and does not express a view.
4. To help us decide whether we should pilot news ways for victim statements to be made, we need to identify any potential impacts that any changes may have.
Please select one item
Radio button:
Ticked
Yes
Radio button:
Unticked
No
If yes please provide further details of any potential implications you envisage.
The Faculty of Advocates wishes to highlight possible difficulties that may arise where, either (a) the victims read their statement in court or, (b) the victims pre-record their statement on video or in audio form only.
It is the experience of members of the Faculty of Advocates that Victim Statements often contain accusations or information that, for reasons of plea adjustment or, because of the manner in which evidence has been established in court, are not relevant to the charge of which the accused has been convicted. In addition, Victim Statements often contain material that the Victim Impact Statement Information Booklet specifically advises should not be included; such as long descriptions of the original crime and descriptions of previous incidents.
The problem identified by members of the Faculty of Advocates, through direct experience and inquiry, is that once the Victim Statement has been prepared, no mechanism currently exists within COPFS to assess whether: (a) it contains material of relevance to the crime of which the accused is convicted; (b) it is consistent with the Crown narrative; (c) it is consistent with the evidence presented in court; (d) complies with the guidance contained in the Victim Impact Statement Information Booklet. Defence practitioners require to take particular care over this issue to ensure that the Victim Impact Statement presented to the sentencing judge does not contain material that would be irrelevant and possibly prejudicial to their client at a critical stage in the process.
If a victim of crime is to present their Victim Statement either in court in person or by means of a pre-recorded statement then it is essential that this is managed to ensure that the difficulties identified above do not happen in court at the time the Statement is given. Currently, the difficulties that emerge as a result of the problems highlighted above are managed in court, on an ad-hoc basis, by the issue being explored by counsel for the defence or prosecution with the trial judge; or, by the prosecution and defence having a discussion over the content of the material at the stage the Victim Impact Statement is produced. In practice, this often occurs at the end of the case. Thus, often the defence have, and are permitted, very little notice, and very little time, to consider the contents of the Statement against that to which the accused has either pleaded guilty or of which the accused has been convicted.
The Faculty foresee that it could be counterproductive to the whole process and distressing to a victim of crime if, when they read out their Victim Impact Statement, or their video was played, the content of their statement was challenged in court or, the contents changed at a very late stage, excluding material they consider essential to the judge’s decision on sentence. Supportive and careful management of this exercise, involving a clear explanation of the process involved, would be essential to ensure the success of any change in the way the victim’s views are provided, either in person or on video.
In addition to the possible difficulties identified for the victims of crime, the Faculty of Advocates would also wish to draw attention to the problems that may arise from the perspective of an accused person and his legal representative should the content of a Victim Impact Statement that is read out or played in court contain material that is inconsistent, prejudicial or irrelevant to an agreed narrative or conviction.
The stage at which the Victim Impact statement is presented in court is often one of the most highly charged moments in the whole criminal process. If inconsistent, prejudicial or irrelevant material is presented, there is a real possibility that difficulties may arise in the professional relationship the accused has with his or her legal representative. This, in turn, raises the possibility of delay, and disruption, to the process of sentencing.
It is the experience of members of the Faculty of Advocates that Victim Statements often contain accusations or information that, for reasons of plea adjustment or, because of the manner in which evidence has been established in court, are not relevant to the charge of which the accused has been convicted. In addition, Victim Statements often contain material that the Victim Impact Statement Information Booklet specifically advises should not be included; such as long descriptions of the original crime and descriptions of previous incidents.
The problem identified by members of the Faculty of Advocates, through direct experience and inquiry, is that once the Victim Statement has been prepared, no mechanism currently exists within COPFS to assess whether: (a) it contains material of relevance to the crime of which the accused is convicted; (b) it is consistent with the Crown narrative; (c) it is consistent with the evidence presented in court; (d) complies with the guidance contained in the Victim Impact Statement Information Booklet. Defence practitioners require to take particular care over this issue to ensure that the Victim Impact Statement presented to the sentencing judge does not contain material that would be irrelevant and possibly prejudicial to their client at a critical stage in the process.
If a victim of crime is to present their Victim Statement either in court in person or by means of a pre-recorded statement then it is essential that this is managed to ensure that the difficulties identified above do not happen in court at the time the Statement is given. Currently, the difficulties that emerge as a result of the problems highlighted above are managed in court, on an ad-hoc basis, by the issue being explored by counsel for the defence or prosecution with the trial judge; or, by the prosecution and defence having a discussion over the content of the material at the stage the Victim Impact Statement is produced. In practice, this often occurs at the end of the case. Thus, often the defence have, and are permitted, very little notice, and very little time, to consider the contents of the Statement against that to which the accused has either pleaded guilty or of which the accused has been convicted.
The Faculty foresee that it could be counterproductive to the whole process and distressing to a victim of crime if, when they read out their Victim Impact Statement, or their video was played, the content of their statement was challenged in court or, the contents changed at a very late stage, excluding material they consider essential to the judge’s decision on sentence. Supportive and careful management of this exercise, involving a clear explanation of the process involved, would be essential to ensure the success of any change in the way the victim’s views are provided, either in person or on video.
In addition to the possible difficulties identified for the victims of crime, the Faculty of Advocates would also wish to draw attention to the problems that may arise from the perspective of an accused person and his legal representative should the content of a Victim Impact Statement that is read out or played in court contain material that is inconsistent, prejudicial or irrelevant to an agreed narrative or conviction.
The stage at which the Victim Impact statement is presented in court is often one of the most highly charged moments in the whole criminal process. If inconsistent, prejudicial or irrelevant material is presented, there is a real possibility that difficulties may arise in the professional relationship the accused has with his or her legal representative. This, in turn, raises the possibility of delay, and disruption, to the process of sentencing.
5. Are there any other aspects of the current victim statement scheme which you consider could be improved?
If yes, please provide further details of what could be improved.
Reference is made to Answer 4 above
6. Do you have any views on whether we should consider amending the definition of who is eligible to make a victim statement (as set out in section 14 of the 2003 Act), to help ensure all relevant victims are able to make a statement if they wish?
Do you have any views on whether we should consider amending the definition of who is eligible to make a victim statement (as set out in section 14 of the 2003 Act), to help ensure all relevant victims are able to make a statement if they wish?
The Faculty of Advocates considers this is a matter for those involved in the development of policy and practice in this area and does not express a view.
7. Are there any data protection related issues that you feel could arise from the proposals set out in this paper?
If yes please provide further details.
The Faculty of Advocates considers this is a matter for those involved in the development of policy and practice in this area and does not express a view.
8. Are there any equality related issues that you feel could arise from the proposals set out in this paper?
If yes please provide further details.
The Faculty of Advocates considers this is a matter for those involved in the development of policy and practice in this area and does not express a view.
About you
What is your name?
Name
Andrew Tregoning
Are you responding as an individual or an organisation?
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Individual
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Organisation
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Organisation
Faculty of Advocates