The Code of Practice for Victims of Crime - Crown Prosecution Service Operational Guidance
Introduction
The Victims' Code was introduced on 3 April 2006. Paragraph 2 of the Code lists organisations required to provide services under the Code and described throughout as "service providers". In addition to CPS the list includes, among others, the police, Probation Service, Prison Service, Witness Care Units, Her Majesty's Court Service and Youth Offending Teams.
The Code should be read and applied in conjunction with the Prosecutors' Pledge, launched in October 2005. The Code is a further step along the path to rebalancing justice and recognising that victims and witnesses should be at the heart of our criminal justice system. The confidence of the public in the CPS and wider CJS will be improved by the provision of information to victims of crime.
Failure to comply with the Code does not of itself give rise to any legal proceedings but can be taken into account in determining any question in any proceedings. Breaches of the Code will initially be referred to the service provider but if the complainant remains dissatisfied, the complaint can be investigated and may be the subject of a report by the Parliamentary Ombudsman.
The statutory obligations upon CPS are set out in paragraph 7 of the Code and those for the joint police/CPS Witness Care Units at paragraph 6.
The Code refers only to victims of crime. The victim may also be a witness but the Code does not set out any obligations to witnesses to criminal conduct.
General Principles
The Code represents a minimum standard of service and its aim is to ensure that victims of crime are provided with timely, accurate information about their case, at all stages of the criminal justice process.
A victim may opt out of receiving services under the Code, or request a modification of the services they receive. If the victim makes this decision it should be recorded by the service provider and passed on to other service providers, as appropriate.
A person who is the direct victim of criminal conduct is entitled to services under the Code. If that person has died or is incapacitated, the family spokesperson is entitled to receive services under the Code. If the victim is under 17, the parent or guardian is entitled to receive services as well as the young person, except when investigated or charged themselves with an offence arising out of the criminal conduct complained of or when the service provider is of the opinion that the parent/guardian does not represent the best interests of the young person.
If the conduct complained of does not constitute a criminal offence the service provider is not required to provide services under the Code. It does not however matter whether the victim is believed or that no person has been charged or convicted. A victim of a crime, which would be recorded under the National Crime Recording Standard, is entitled to services under the Code.
The Code provides for an enhanced service for vulnerable or intimidated victims or their families. Victims of sexual offences or domestic abuse and criminal conduct resulting in a death have automatic eligibility for enhanced services. Enhanced service refers to the time within which information is given to the victim - usually one working day for vulnerable and intimidated victims.
All service providers have an obligation to pass to other organisations with responsibilities under the Code, details of any victim who has been identified as vulnerable or intimidated (taking into account confidentiality and safety in cases such as Domestic Violence). Thus the police should inform CPS, who, in turn should ensure that the court and the WCU are informed.
If there is any doubt about eligibility or any obligations under the Code, you will need to refer to the full text.
Pre-charge advice
It is essential that the duty prosecutor complies with the CPS statutory obligations under the Victims' Code. The Code does not specify what form the communication with the victim should take but, where there is an obligation upon CPS to notify the victim of the decision, the principles of Direct Communication with Victims apply. The explanation for the decision should be in writing and in accordance with DCV guidance.
The obligations that apply to charging advice are:
- 7.2 It is the duty of the CPS to ensure that victims are informed of charging decisions taken by the CPS. In cases where, following discussions between an investigating officer and a Crown Prosecutor, the decision is taken that there is insufficient evidence to bring any proceedings for a relevant criminal offence it will be the responsibility of the police to notify the victim of this fact
- 7.3 Where a Crown Prosecutor takes the decision that there is insufficient evidence to bring any proceedings following receipt of a full evidential report and other than during a discussion with the investigating officer, it will be the responsibility of the CPS to notify the victim of this fact within one working day for vulnerable or intimidated victims and within five working days for all other victims
Definitions
In the Code a "relevant criminal offence" is a recorded crime (National Crime Recording Standard).
In the Code a vulnerable victim has the same definition as under the section 16 of the Youth Justice and Criminal Evidence Act 1999. The date for assessment of vulnerability is at the date of offence, rather than the date of the hearing, although any assessment should be reviewed throughout the life of the case.
In summary, a vulnerable victim is eligible for enhanced services under the Code:
- If under the age of 17 at the time of the offence
- If the service provider considers that the quality of evidence given by the victim is likely to be diminished by reason of
- suffering from mental disorder within the meaning of the Mental Health Act 1983
- having a significant impairment of intelligence and social functioning
- having a physical disability or suffering from a physical disorder
An intimidated victim has a wider definition than that used in the 1999 Act, although the starting point is the same.
- 4.6 For the purposes of the Code a victim of criminal conduct is eligible for an enhanced service under the code if the service provider is satisfied that the quality of evidence given by the victim is likely to be diminished by reason of fear or distress on the part of the victim in connection with testifying in the proceedings
The Code sets out what the service provider (in this case the duty prosecutor) must take into account:
- the nature and circumstances of the offence
- the age of the victim
- if relevant, social and cultural background and ethnic origin, domestic and employment circumstances, religious belief or political opinion
- any behaviour towards the victim on the part of the accused, members of the family or associates of the accused, or any other person who is likely to be an accused or witness in the proceedings
It is important to remember that under the Code the victim of a sexual offence or domestic abuse and the relatives of those who have died as a result of an offence are automatically considered to be "intimidated" under the Code (paragraph 4.9). They must receive enhanced services unless they inform the service provider that they do not wish to do so.
The service provider must consider any views expressed by the victim, when determining whether a victim falls within the relevant definitions
CPS has decided that, although the Code refers only to cases when there is no prosecution for evidential reasons, a DCV letter should be sent in cases when the decision is on public interest grounds as well.
Persons entitled to receive services under the Code include a family spokesperson, if the victim has died or is unable to receive services under the Code by reason of disability. Businesses are included (paragraph 3.7). Previous DCV guidance required that a letter be sent to small businesses but the Code includes an obligation extended to all business. It will be necessary however for a named contact to be given to the service provider by any business wishing to receive services under the Code.
A victim's status may change during the course of an investigation. The question of vulnerability or intimidation should be reviewed if the circumstances change.
The prosecutor who provides pre-charge advice through CPS Direct will not be required to communicate with the victim, since there will inevitably have been a telephone conversation with the investigating officer.
Direct Communication with Victims
In 2001 the DCV scheme was launched. Since then prosecutors have been writing letters explaining decisions to drop or substantially alter a charge. The Code places the CPS DCV obligations on a statutory footing.
The obligations that apply to DCV are:
- 7.4 If, after an offender has been charged and following case review, the CPS takes a decision to substantially alter or drop any charge, the CPS must notify the victim within one working day for vulnerable or intimidated victims and within five working days for all other victims. In all other circumstances, the police will be responsible for notifying victims of decisions in cases.
- 7.5 The prosecutor may decide in accordance with CPS guidance that it is inappropriate or unnecessary in the particular circumstances to notify the victim, or that, for legal reasons, no explanation beyond setting out the tests in the Code for Crown prosecutors can be given. In such cases the reasons for providing no information or only limited information must be recorded.
- 7.6 The CPS has additional obligations set out in paragraph 7.7 below in relation to cases involving a death allegedly caused by criminal conduct, such as murder, manslaughter, dangerous driving or careless driving, cases of chid abuse, sexual offences, racially and religiously aggravated offences and offences with a homophobic or transphobic element.
- 7.7 The CPS must offer to meet the victims of the types of cases identified in 7.6 to explain a prosecution decision in the following circumstances:
- 7.7.1 where the prosecutor decides not to bring proceedings in respect of criminal conduct following the provision of a full evidential report by the police to the CPS for a CPS decision on charge (in accordance with guidance issued by the Director of Public Prosecutions, and other than during face to face consultation with an investigator;
- 7.7.2 where a decision is made to drop or substantially alter charges in respect of relevant criminal conduct;
unless the prosecutor concludes that in all the circumstances a meeting ought not to take place in which case he or she must record in writing the reason for that conclusion.
The terms in which the Code is written are nothing new for the CPS. Prosecutors have been writing letters and offering meetings in accordance with published guidance but must now notify victims of decisions within one day if they are vulnerable or intimidated. The timescale for other victims is five days. The previous guidance, suggesting that letter writers should avoid posting letters on a Friday, is still sound advice but the statutory nature of the Code must prevail when taking any decision about when to send a letter.
The introduction of the Code also means that performance will be measured against a target of 100% compliance with victim notification and 100% timeliness.
The introduction and maintenance of effective processes to deliver the CPS obligations under the Code are vital to success and an increase in victim satisfaction. Please see the DCV guidance section "Practicalities and Monitoring" for the key elements of good practice to support delivery locally.
Witness Care Officers have a part to play in keeping victims (and witnesses) informed about what happens in their case. No Witness, No Justice Minimum Requirements expect that witnesses "will be provided with the information or letters sent by the end of the day following the court hearing". This does not affect the separate requirement that CPS will communicate these decisions to the victim but there is much to be gained by working closely with the local WCU to improve early communication and avoid duplication. If the first communication to a vulnerable or intimidated victim is just a basic notification and the full explanation is to follow, there is no reason why that communication cannot be made by the WCU. The important thing is to ensure that there is a good flow of information between WCU and CPS prosecutor and that all communications are recorded for performance management purposes.
Advocacy
The obligations upon CPS in relation to advocacy are based on the commitments given originally in the Victims' Charter, followed by the Prosecutors' Pledge. They reflect existing good practice and guidance that has already been published.
The CPS obligations that apply to advocacy are:
- 7.9 The CPS must ensure that, where circumstances permit, prosecutors or, if prosecutors are unavailable, other representatives of the CPS introduce themselves to victims at court. When meeting victims, prosecutors or their representatives must answer any questions victims may have about court procedures and give an indication where possible of how long they will have to wait before giving evidence.
- 7.10 In the event of delays to criminal proceedings in respect of relevant criminal conduct, the CPS must wherever possible, explain the reason for the delay and, wherever possible, tell the victim how long the wait is likely to be.
The work of the Witness Service volunteer does not remove the obligation of the prosecutor, whether employed by CPS or member of the independent bar, to introduce him or herself to the victim at court. Paragraph 7.9 anticipates that there may be exceptions to this, if the advocate is unavailable but this should only arise in very exceptional circumstances; meeting the victim at court and keeping him/her informed should be viewed as a common courtesy.
These obligations rest on the CPS and therefore, if the prosecutor is unable to fulfil them personally, a CPS caseworker or other suitably experienced member of the team should ensure that the appropriate explanations are provided to the victim.
Case Management
There are two obligations upon CPS that affect the way we make decisions and progress cases where an identifiable victim is involved. Neither have specific timescales set out in the Code but both require early consideration and prompt action.
- 7.8 Where a victim who is to be called as a witness in criminal proceedings in respect of relevant criminal conduct has been identified as potentially vulnerable or intimidated, the CPS must have systems in place to assist prosecutors in considering whether or not to make an application to the court for a special measures direction under Chapter 1 of Part 11 of the Youth Justice and Criminal Evidence Act 1999. The outcome of that consideration must be recorded.
The systems referred to in this paragraph are in place at national level. Joint police/CPS Witness Care Units are in place in all CPS Areas, providing support for victims (and witnesses) and able to share information about special measures with the prosecutor.
In addition, prosecutors are able to keep up to date on issues relating to special measures, sharing legal problems and solutions by accessing bulletin boards and learning about the development of special measures, such as intermediaries and emerging processes to support special measures, for example pre-trial interviewing of witnesses or witness profiling.
Local managers will need to have processes that work to ensure early identification of cases, early consideration of special measures and timely, well-prepared applications. Participation in the LCJB multi-agency victim and witness sub group, addressing the needs of vulnerable and intimidated witnesses as one of the seven priorities is an opportunity to review and develop local systems.
The objective for CPS is not just to have the systems, required by this obligation, in place but to provide tailored support in the form of special measures to victims who have to give evidence in court. This is achieved by early consultation and consideration of individual need, keeping victims informed when an application is made and of the outcome and providing them with the confidence to give their best evidence.
- 7.13 The CPS must provide the joint police/CPS Witness Care Unit with copies of the List of Witnesses Attending Court as soon as these are finalised to enable the joint police/CPS WCUs to notify victims if they are required to give evidence
It is now the responsibility of the WCU to warn witnesses required to attend court. Where WMS is used by the WCU, once an LWAC has been dispatched in CMS, the WCO responsible for the case will be able to read the LWAC in WMS and arrange to warn the witnesses.
This obligation is intended to ensure that the victim is informed as soon as possible whether they will be required to attend court and the date. It is not so much dependent on the link between the CPS and WCU, when WMS is used, as upon timely consideration by the CPS of which witnesses are required and the entry of these details into CMS.
If WMS is not in use in the Area, CPS should agree a system with the WCU, to provide a copy of the LWAC as soon as it is available.
The real issue is for CPS to make timely decisions about which witnesses to call to give evidence. Where there is a need to consult counsel, a realistic but short timescale should be agreed and any delay monitored and followed up.
Other CPS Obligations
- 7.11 The CPS must pay expenses that the CPS has decided are due to the victim, in accordance with the Crown Prosecution Service (Witnesses' etc Allowances) Regulations 1988 not later than ten working days after the day the CPS receives a correctly completed claim form
This is a commitment that existed before the Code.
- 7.12 The CPS must answer any questions the victim has about the sentence in their case if the victim is referred to the CPS by the joint police/CPS Witness Care Unit as at paragraph 6.8
If the sentence is complex/and/or the prosecutor has explained the sentence at court to the victim, it is good practice for a file endorsement to record clearly all details and what was said.
In cases where the sentencing exercise is complex, it can be useful for the prosecutor to brief the family before the sentence is announced about what options are available to the court. At least one Area has devised a briefing sheet of options, with explanations that can be used in cases involving murder or manslaughter. It will help the victim or family to understand the process and may reduce subsequent enquiries.
The managers of each CPS unit should agree with the relevant WCU Manager the procedures for referrals of sentencing enquiries and decide who will deal with the enquiry, to minimise delay. There is no timescale set by the Code but good practice would be to respond the same day as the query is received, if possible, and in any event within one working day.
Community Orders may have quite complex elements and may be difficult for the WCO (or CPS team member) to explain. An Area may wish to consider providing the WCU with a checklist of what Community Orders are available in the local courts and an explanation of each element, to avoid the situation arising where the WCO is unsure of the meaning of the sentence.
- 7.14 The CPS must respond to requests for information from the Criminal Injuries Compensation Authority or the Criminal Injuries Compensation Appeals Panel no later than 60 working days after the day on which the CPS receive the request.
There is no reason why this obligation should present any difficulties for the CPS, in view of the time limit set in the Code. Areas will have been providing information routinely in these circumstances and retrieving files for this purpose.
In order to demonstrate compliance with this obligation, managers should consider keeping a simple record of all requests received and the date that the response is sent.
- 4.11 All organisations with responsibilities under the Code should identify victims as vulnerable or intimidated as defined by the Code. Once the service provider has identified a victim as vulnerable or intimidated, that service provider must ensure that this information is passed on as necessary to other organisations with responsibilities in this Code.
In order to comply with other obligations under the Code the CPS must have in place a system of identification of vulnerable and intimidated victims. This will either be by the prosecutor providing pre-charge advice, by the person who registers the case, based upon information recorded by the police or by the prosecutor who reviews the file for court. Information will be supplied during the course of the case by the WCU which may affect the status of the victim.
Managers should devise an effective system with the other agencies concerned to ensure that this obligation is met. Good practice may include attending the LCJB Victim and Witness sub group to discuss this issue with partner agencies.
The CPS should aim to provide the information required to the court at or before the first hearing of the case and to the WCU at the point the case is referred to the unit (unless the WCU has been informed by the police).