In this guest post, Louise Taylor argues for a change in the way victims of crime are represented in the justice system. Louise is a full time PhD student with the OU Law school and is researching the development of a coercive control defence for domestically abused defendants. If you are considering studying for a law PhD and would like to contact Louise to discuss her experience of research, you can email her on firstname.lastname@example.org
There are various points throughout the English and Welsh criminal justice process where victims would benefit from the provision of Independent Legal Representation (ILR) provided through the state-funded legal aid system. Such a development would be of particular benefit to victims in reducing the secondary victimisation that many experience as a result of their interactions with the Criminal Justice System.
Victim dissatisfaction and secondary victimisation can result from the lonely and sometimes hostile environment that victims are required to navigate in their pursuit of justice. This could be greatly ameliorated if victims were able to access free legal representation from an adviser who represented only the interests of the victim and who was experienced in the language and procedures of the criminal justice system. Access to ILR would also be of benefit to victims in ensuring that the agencies dealing with their cases (such as the police and CPS) were held to account in meeting the standards of support and protection required under the Victims’ Code of Practice 2013. The victim’s legal representative would be a single point of contact to offer advice to the victim and to access information on their behalf. This would prove particularly useful for those victims who wished to challenge the decisions of criminal justice agencies or utilise the Victims’ Code of Practice complaints mechanisms.
In the context of our adversarial system of justice the most controversial aspect of ILR relates to the provision of legal representation for victims during the trial process. Sam Garkawe advocates that ‘given [the] specific interest of the victim, the laws of procedural fairness seem to suggest that victims should receive consideration throughout the proceedings on the basis that they are substantially affected.’ Arguably the best way of protecting these specific interests is to provide victims with legal aid in order that they can secure their own legal representation. Not only would this allow victims to be better supported to give their best evidence in court, this would also provide victims with much more robust protection from over-zealous questioning by defence counsel than could ever be achieved under our current arrangements.
However, opponents of ILR contend that such a development would interfere with the defendant’s right to receive a fair trial, and more particularly, that the introduction of a third party to proceedings who would stand in opposition to the defendant’s position would undermine the central tenet of equity of arms which underpins our bipartisan adversarial tradition. This may be so if an ILR approach was adopted which put victims on an equal footing with the defendant, but there are clearly approaches that could be adopted that would fall short of that, allowing for the observance of the defendant’s rights while offering increased support and protection to victims. Other common law jurisdictions have been successful in doing so and there is no reason to think that this could not be similarly achieved in this jurisdiction. Indeed, as Fiona Raitt has explained:
‘Several common law jurisdictions, e.g. Ireland and Canada, have introduced specialised procedures for legal representation at specific procedural stages, or, as in the US, promote a far more robust, prosecutorial-driven case-building approach linked to more direct access by complainants to prosecutors.’
If one of these compromise approaches could be adopted in England and Wales then the adversarial nature of our system should not, in itself, constitute an insurmountable barrier preventing the provision of ILR through legal aid for crime victims. A much more real and present threat is however presented by the extensive austerity measures that were introduced to this jurisdiction in 2013 under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In a climate where the government seek to save £220 million from the £1 billion annual criminal legal aid budget it is unlikely to prove politically and economically viable for the government to support the introduction of ILR for victims funded by the public purse.
During such challenging times it is also likely that the legal profession would be reluctant to support such a development. Where would the legal representatives for victims come from if not from the existing pool of criminal solicitors and barristers who may be understandably reluctant to become further embroiled in the uncertain and challenging legal aid market? Many of these potential advisers may also feel precluded from supporting ILR for victims at a point when many consider that the interests of defendants have been significantly and inappropriately undermined by the government’s cuts to the legal aid budget.
For more information see my full contribution to the EU funded project Improving Protection of Victims’ Rights: Access to Legal Aid which can be accessed here: http://victimsrights.eu/