ENGLAND AND WALES

ENGLAND AND WALES
INTRODUCTION
1.
Overview:
2.
Legal background: England and Wales is a common law jurisdiction in the United
Kingdom (Scotland and Northern Ireland having their own legal jurisdictions –
though the Supreme Court 1 of the United Kingdom (formerly the House of Lords)
operates as the court of final appeal in the whole of the United Kingdom in civil
cases – and the court of final appeal for England and Wales, and Northern Irelan d in
criminal cases). The constitutional structure of England and Wales operates under
the principle of Parliamentary Sovereignty , or the Supremacy of Parliament, 2 which
provides that no Parliament can bin d its successors in legislating, nor, generally, can
the courts overrule or strike down legislation. Aside from domestic legislation from
Parliament, and European Union Regulations 3 (as distinct from EU Directives, which
must be transposed into domestic law by the Member State), the other principal
source of law in England and Wales is caselaw. In-line with the common law’s
adversarial tradition, the judge’s role in criminal proceedings is typically as a neutral
referee. Judges do not normally call or interview witnesses to crimin al or civil
proceedings, not do they cross-examine witnesses. In criminal proceedings, at the
lower Magistrates’ Court level, judges are the trier of fact. From Crown Court level,
an accused individual has a right to a jury as the trier of fact in their pr osecution.
However, there are exceptions to this generaly right, such as under Section 44 and 47
of the Criminal Justice Act 2003 (where there is a risk of jury tampering) and
Sections 17-22 of the Domestic Violence, Crime and Victims Act 2004.
3.
The role of the AV: In criminal proceedings in England and Wales, the AV’s role is
generally 4 that of a witness, and are referred to as the Complainant. 5 For the
purposes of the Code of Practice for Victims of Crime in England and Wales
(hereinafter “The Code”), a “victim” is: a person who has suffered harm, including
The Supreme Court of the United Kingdom replaced the judicial function of the House of Lords in Part 3 of the
Constitutional Reform Act 2005.
2 Parliamentary Sovereignty <http://www.parliament.uk/about/how/sovereignty/> accessed 21 March 2015.
3 Article 288 of the Treaty on the Functioning of the European Union.
4 Though rarely used, there is the possibility of bringing a private prosecution under section 6(1) of the Prosecution of
Offences Act 1985. See also Crown Prosecution Service Guidelines on Private Prosecutions
<http://www.cps.gov.uk/legal/p_to_r/private_prosecutions/> visited 20 March 2015.
5 Criminal Procedure Rules <https://www.justice.gov.uk/courts/procedure-rules/criminal> visited 22 March 2015.
1
physical, mental or emotional harm or economic loss which was directly caused by
criminal conduct; a close relative of a person whose death was directly caused by
criminal conduct. 6 In civil proceedings, the AV is defined as the Claimant (previously
defined as the Plaintiff). 7
4.
What are the formalities of lodging a criminal complaint (e.g. written
statements, signed, under oath, before a police officer, paying fees, etc.)? AVs
of crime, like other witnesses to a crime, report crimes to the police. There are no
fees to be paid for making a criminal complaint. The police officer takes a written
statement of the complaint, which the AV signs. 8 Once this statement is taken, the
police will decide whether to pursue an investigation into whether a crime has been
committed, and then refer the case to the Crown Prosecution Service (CPS) for a
decision on whether charges should be brought against any individuals. 9 Police
powers of investigation 10 are both reactive (to complaints by AVs or other
witnesses), or proactive (where the police investigate its own suspicions regarding
the possibility of criminal activity). Police investigators are obliged unde r the Code
of Practice to follow “all reasonable lines of inquiry”. 11
5.
Private Prosecutions: Private Prosecutions are possible in England and Wales under
section 6(1) of the Prosecution of Offences Act 1985. Unless the CPS’s test for the
duty to take over the prosecution is met, 12 any person may take a prosecution for any
crime. The Crown Prosecution Service, exercising the discretionary powers of the
Director of Public Prosecutions (DPP) may, where certain circumstances arise, 13 take
over such private prosecutions, or take over and terminate such prosecutions. 14
Regardless of whether the prosecution is successful, the prosecutor may apply to the
court to have their costs reasonably compensated for from central funds, or by the
defendant. 15
The Code, Introduction, Section 4.
Civil Procedure Rules 1998.
8 Section 9 of the Criminal Justice Act 1967. Anonymous complaints can also be submitted through the Crimestoppers
service for any offence.
9 Section 23(1), the Criminal Procedure and Investigations Act 1996 – the “Criminal Procedure and Investigations
Code of Practice”.
10 Provided for under the Police and Criminal Evidence Act 1984.
11 See (n 9), s 3(5).
12 See Code for Crown Prosecutors: Full Code Test
<https://www.cps.gov.uk/publications/code_for_crown_prosecutors/codetest.html> visited 24 March 2015.
13 See CPS Guidelines for Private Prosecutions <http://www.cps.gov.uk/legal/p_to_r/private_prosecutions/>
visited 20 March 2015.
14 Ibid.
15 Section 17(1) Prosecution of Offences Act 1985.
6
7
QUESTION 1: IN LIGHT OF RELEVANT LEGISLATION, CASE LAW
AND POLICY DOCUMENTS, DOES YOUR JURISDICTION PROVIDE
FOR VICTIM PARTICIPATION IN CRIMINAL PROCEEDINGS FOR
ALL ALLEGED VICTIMS IN ANY OF THE FOLLOWING FORMS?
6. General Role of AV: Aside from the aforementioned possibility of taking a private
prosecution, the role of the AV is generally confined to that of a witness in the
investigation and any subsequent court proceedings .
7. Is there a duty to investigate when complaint is filed by alleged victims (AVs)?
If yes, how can it be enforced? Under common law, the police do not owe a duty
of care in negligence in relation to the investigation of crimes. 16 However, before 17
and following the enactment of the Human Rights Act 1998 (HRA), which
incorporated the rights in the European Conven tion on Human Rights (ECHR) into
UK Law, there has been a question about whether the Convention rights place
obligations on the police to investigate certain kinds of violent crimes competently . 18
Litigation has focused on Article s 2 (right to life) and Article 3 (prohibition on
torture) of the Convention.
In a recent review of the domestic and Convention jurisprudence, Green J in DSD
and NVB v The Commissioner of Police for the Metropolis 19 outlined a duty to undertake an
independent and impartial investigation. 20
It was triggered where there was a credible or arguable claim, by the victim
or a third party, that a person had been subjected to treatment at the
hands of a private party which met the description of torture or degrading
or inhuman treatment under Article 3. Allegations of crime that were
“grave” or “serious” amounted to torture or degrading or inhuman
treatment; rape and serious sexual assault fell within that category. Where
a credible allegation of a grave or serious crime was made, the police had
See Hill v Chief Constable of West Yorkshire [1989] AC 53 per Lord Keith at 63A-64A and per Lord Templeman at 65C;
Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495; and Smith v Chief Constable of Sussex [2009] 1
AC 225.
17 Osman v United Kingdom 29 EHRR 245 (28th October 1998).
18 Z and Others v United Kingdom 34 EHRR 3 (10th May 2001), Edwards v United Kingdom 35 EHRR 19 (14th March
2002), Szula v United Kingdom (2007) 44 EHRR SE19, Denis Vasilyev v Russia App No 32704/04 (17th December 2009),
etc.
19 [2014] EWHC 436 (QB) (Hereinafter NVB).
20 NVB, para 241.
16
to investigate in an efficient and reasonable manner, which was capable of
leading to the perpetrator’s identification and punishment. The duty was
one of means, and not results and the breach could occur regardless of
whether the investigation lead to an arre st, charge and conviction.
Whether a breach had occurred was measured by viewing the police’s
conduct over a relevant timeframe. The assessment of the efficiency and
reasonableness of an investigation took account of its promptitude and
whether an offender was adequately prosecuted. A successful prosecution
within a reasonable time would render operational failures irrelevant and
non-justiciable. 21
8. What can AVs who filed a complaint do if police refuses or neglects to
investigate (e.g. by complaining to pol ice, by complaining to prosecution,
etc.)? What are the legal requirements for AVs to do that? Aside from the legal
action contemplated in the previous section, AVs can, in the case of a failure or
refusal to investigate, make a complaint to the Independent Police Complaints
Commission (IPCC). Such a complaint is confined in relation to the conduct of
police officers involved in the investigation, and is not a review of the case. The
IPCC cannot direct a reinvestigation of the allegation. 22 In the case of a failure or
refusal to prosecute on the part of the CPS, an AV can access the Victims Right to
Review Scheme with the CPS. 23 This process of review can also be independently
reviewed by a complainant.
9. What passive rights do AVs have after lodging a complaint (e.g. right to
information, right to legal counsel, right to free legal aid, right to access to
casefile, etc.)? Under The Code, 24 AVs possess a number of entitlements with
regard to any subsequent investigation, prosecution and court proceedings flowing
from their complaint. Based on a “consumer” model 25 (the level of interaction the
AV wants), the Code sets out a number of “entitlements” 26 to information, such as
what the AV can expect from the criminal justice process ; be informed about aspects
Rosalind English, “Police have “Osman” duty to investigate in Date Rape cases” UK Human Rights Blog
<http://ukhumanrightsblog.com/2014/03/07/police-have-osman-duty-to-investigate-in-date-rape-cases/> visited 24
March 2015.
22 See IPCC website <https://www.ipcc.gov.uk/faqs> visited 25 March 2015.
23 See <http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/index.html> visited 23 March 2015.
24 Created pursuant to Section 33 of the Domestic Violence, Crime and Victims Act 2004.
25 Tim Newburn, Criminology (2nd edn, Routledge 2013), 376.
26 Note difference between victim’s “entitlements” under the Code, to victims’ “rights” in the Victims’ Rights
Directive 2012/29/EU, due to be transposed in the UK 16 November 2015.
21
of the police investigation, such as if and when suspect is arrested, charged, bail
conditions, if being prosecuted, court dates , any appeal by an accused and the
outcome of such an appeal, upcoming release dates of offender (through the Victim
Contact Scheme); enhanced “service” if an AV of serious crime; a needs assessment
to evaluate how much support an AV needs; referral to victim support organisations;
assistance in making a Victim Personal Statement so the AV can articulate in court,
and to subsequent Parole Board hearings, how the crime has impacted the AV;
informed about possible review of CPS decision not to prosecute; arranging of a
court familiarisation visit; meeting the CPS prosecutor to ask questions; advice on
seeking compensation from the Cri minal Injuries Compensation Scheme; receive
information on Restorative Justice; make a complaint if don’t receive information
and services that the AV is entitled to.
If the AV is a child, 27 or a vulnerable or intimidated witness subject to enhanced
entitlements, 28 the AV has some additional entitlements such as having someone
(such as a parent or guardian, or someone else normally above 18 years of age)
present while the statement is taken; to ask for someone to help if they do not
understand the questions; have the statement video recorded to make it easier to
explain what happened; be told about the Special Measures 29 available when the AV
visits court. Finally, such AVs are entitled at any time during the investigation and
trial to speak to someone specially trained to listen to you and help you get over the
crime. This may be called therapy or counselling and is often provided by a specialist
organisation. 30
10. Are there provisions for support services (including counselling, use of
interpreter, interim compensation and other measures) at the time of
complaint? Under The Code, AVs are entitled to be referred on to various locally
available
victims’
support
services. 31
AV
categories
subject
to
“enhanced
entitlements” may be automatically entitled to information and referral to support
services. The Codes of Practice issued under the Police and Criminal Evidence Act
1984 (PACE) give guidance to the police regarding the u se of interpreters during the
taking of witness statements.
The Code, Chapter 3, Part A, Section 1.
The Code, Chapter 1.
29 The Code, Chapter 1, Enhanced Entitlements.
30 The Code, Chapter 3, Part A, Section 1(12).
31 The Code, Chapter 2, Part A, Section 1; Chapter 3 Part A, Section 1.
27
28
On the PACE Codes of Practice in relation to Interpreters. The relevant code book is Code C.32

Interpreters are provided at public expense (section 13.8).

3.5(c)(iv) – an officer shall determine whether a detainee requires an interpreter.

3.12 – "If the detainee appears deaf or there is doubt about their hearing or speaking ability
or ability to understand English, and the custody officer cannot establish effective
communication, the custody officer must, as soon as practicable, call an interpreter for
assistance in the action"

5A – A detainee "may request an interpreter to interpret a telephone call or translate a
letter"

11.18(c) – a detained who had difficulty understanding English or has a hearing disability,
may not be interviewed without an interpreter present unless a police officer of
superintendent rank or above considers the delay will lead to certain consequences such
as: interference with, or harm to, evidence connected with an offence; interference with,
or physical harm to, other people; or serious loss of, or damage to, property; lead to
alerting other people suspected of committing an offence but not yet arrested for it;
or hinder the recovery of property obtained in consequence of the commission of an
offence.

Section 13 generally covers the use of Interpreters. Sets out general obligation on Chief
Officers in a station to make arrangements for interpreters for people who have hearing
impairments or do not understand English. Which should "Whenever possible,
interpreters should be drawn from the National Register of Public Service Interpreters
(NRPSI) or the Council for the Advancement of Communication with Deaf People
(CACDP) Directory of British Sign Language/English Interpreters"
11. Are
there
provisions
for
witness
protection
during
the
investigation?
Consolidating the existing framework of Police Witness Protection Units in 2012, the
UK Protected Person Service provides protection to any individual member of the
public (witness or not) deemed to be at risk of serious harm. 33
From Jan 31st 2008. See
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/117597/pace-code-c.pdf>
(visited 17 March 2015).
33 See <http://www.nationalcrimeagency.gov.uk/about-us/what-we-do/specialist-capabilities/uk-protected-personsservice> visited 23 March 2015. The agency cites Articles 2, 6 and 8 of the ECHR, Chapter 4 of the Serious Organised
Crime and Police Act 2005, and Section 178 of the Anti-social Behaviour Crime and Policing Act 2014 as its legal
foundation.
32
12. Are the alleged victims consulted while deciding whether to prosecute? As per
The Code, AVs are entitled to be notified about decisions to prosecute by either the
Police 34 or the Crown Prosecution Service. 35
13. How can AVs challenge the decision of the competent authority on whether or
not to issue an indictment and proceed to trial (e.g. informal complaint to
police/prosecution, judicial review of the decision, etc.)? What are the legal
requirements to challenge the decision? Following the Court of Appeal decision
in R v Christopher Killick, 36 the courts have held that AVs should not have to seek
recourse to judicial review of a CPS decision not to prosecute, or to terminate
proceedings against an accused. As explained above, AVs can now request a review
of a CPS decision not to pursue a prosecution under the Victim Right to Review
Scheme. 37 The outcome of this review can also be independently reviewed. These
processes can then result in a decision to recommence pr oceedings.
14. How can AVs influence the indictment (e.g by requesting changes to the scope
of the charge or type of crimes charged, submitting own views on the charges,
etc.)? While under The Code 38 AVs are entitled to consultation with the CPS about
decisions to prosecute, and to a review of decisions not to prosecute or to terminate
proceedings, they have no entitlement to request the CPS to adjust the nature of
charges being brought against the ac cused. Under The Code, AVs are entitled to have
the Police take their Victim Personal Statement (VPS), and provide it to the CPS at
any time prior to sentencing. 39 The CPS has a duty under the Code to provide it to
court in a timely manner along with the AV ’s “preference” (the AV’s preference for
having the VPS read out in Court or not). 40
15. What passive rights do AVs have when the indictment is issued (e.g. right to
be informed, right to access evidence presented in indictment, right to legal
aid, right to legal counsel)? As outlined above, under Section 2 of The Code, AVs
are entitled to information regarding CPS decisions to end prosecution, or vary
charges. Additionally, the Witness Care Unit has a duty to inform an AV of the
outcome of bail hearings, court dates and locations within one working day of the
Unit receiving notice from the court . The Witness Care Unit also has a duty to refer
The Code, Chapter 2, Part A, Section 2(2).
Ibid., Section 3(3).
36 [2011] EWCA Crim 1608.
37 See n 23.
38 The Code, Chapter 2, Part A, Section 2.
39 The Code, Chapter 2, Part A, Section 1; Chapter 3, Part A, Section 1.
40 The Code, Chapter 2, Part A, Section 1(11) and 1(12).
34
35
the AV to support services where the accused pleads not guilty, or where the AV will
be called to give evidence. There is currently no provision for an AV to be legally
represented during a criminal prosecution , nor is there a right to legal aid for any
legal advice sought independently of the police or the CPS.
In the case of child AVs, AVs are additionally entitled to be made aware, and
possibly offered a meeting with the CPS to discuss, a decision by the CPS to make
big changes to the nature of the charges against the defendant. 41
16. What are the rights available to the alleged victims in relation to the trial?
Under The Code, 42 the AV is entitled to see their Witness statement to refresh their
memory. Additionally, the AV can request access to a separate entrance to the court;
to meet the CPS to ask about the proceedings; to be seated in an area separate to the
accused and their family; be given a point of contact in the court so the AV can find
out what is happening with proceedings. 43 An AV is also entitled to be compensated
for any costs the CPS deems the AV to have incurred during the trial. 44
Certain AVs, such as victims of sexual crimes, have a n entitlement to anonymity
(through control of reporting on the trial) . 45 Other witnesses, such as vulnerable or
intimidated AVs, may also be granted anonymity in the press by the court. 46 In the
Crown Court, if the court believes the witness would be unable or unwilling to give
evidence unless the public gallery is cleared, the judge may order the evidence to be
heard in camera. 47
17. How can AVs influence the investigations (e.g. by providing evidence, by
requesting specific investigations into certain issues or suspects, etc.)? AVs
can influence investigations by providing witn ess evidence to the police. As outlined
above, the power of AVs to review the nature of an investigation is limited to
judicial review of the conduct of investigating officers, and not the focus and
direction of those investigations.
18. What rights are accorded to AVs in relation to pre-trial detention (e.g. making
submissions on the need for pre -trial detention)? As explained above, AVs are
entitled to have their Victim Personal Statement, which includes information about
The Code, Chapter 3, Part A, Section 2.
The Code, Chapter 2, Part A, Section 2.
43 The Code, Chapter 2, Part A, Section 3.
44 The Code, Chapter 2, Part A, Section 4.
45 See Sexual Offences (Amendment) Act, 1992.
46 Section 46 of the Youth Justice and Criminal Evidence Act 1999.
47 Criminal Procedure Rules, Rule 16.10.
41
42
the impact of the crime on their live s, and their concerns about crime, provided to
the court in a timely manner by the CPS. 48
19. What passive rights do AVs have during the investigations (e.g. right to up dates, right to access casefile, right to legal aid, right to legal counsel, etc.)?
As explained above, under The Code, 49 the police have various obligations to keep
the AV informed of any progress in their investigation.
20. Do AVs have independent legal representation, distinct from the prosecutor?
AVs do not have independent legal representa tion distinct from the prosecutor in a
criminal trial.
21. Do AVs have the following rights:
22. Right to deliver opening and closing statements : Victims are entitled to have
their Victim Personal Statement delivered to the Court before sentencing, along with
their preference for having the VPS read out loud by themselves in court. The court
then decides whether the AV can have their VPS read out in court before sentencing.
23. Right to present evidence: No
24. Right to call witnesses: No
25. Rights of cross-examination: No
26. Right to raise objections: No
27. Right to have a support person, intermediary or interpreter during trial: An AV
is entitled to have friends, family and other supporting persons with them in court.
All witnesses, including the AV, are entitled to assistance fr om the Witness Care
Unit 50 and their Witness Care Officer, including the organising of interpreters. 51
28. Access to other special measures (for example, giving evidence through
television links, taking breaks during testimony, having a video -recorded chief
examination, removal of wigs and robes for court proceedings etc).? Under
Special Measures 52 in the Code of Practice for V ictims of Crime, vulnerable or
intimidated witnesses, such as an AV, can request special measures to assist them
with the giving of their testimony. Such measures include: screens or curtains so the
AV doesn’t have to see the accused, to give their evidence via video-link, to give
evidence in private where sexual offence, or where the court is satisfied someone
The Code, Chapter 2, Part A, Section 1(12).
The Code, Chapter 2, Part A, Section 1.
50 The Code, 2.
51 See <http://www.cps.gov.uk/eastmidlands/victims_and_witnesses/frequently_asked_questions/> visited 24
March 2015.
52 The Code, Chapter 2, Part A, “Enhanced Entitlements”, section 1(13).
48
49
else in the public may seek to intimidate the witness, the removal of wigs and gowns
by the barristers and judges, giving pre-recorded video statements as their main
prosecution evidence. If the AV is considered a vulnerable victim, the AV may have
the use of communication aids and or the assistance of registered intermediaries.
29. At the time of sentencing, are there any provisions for victim impact
statements? The AV is entitled to have their VPS considered by the court.
53
It is for
the court to decide whether the VPS is to be read out by either the AV, or by the
CPS prosecutor, and which sections can be read out in court as evidence postconviction and prior to sentencing. 54
30. Is the reward of compensation allowed at sentencing? If yes, who bears this
cost? Are there any other forms of rehabilitation guaranteed to AVs? Do these
depend on a finding of guilt? According to the Crown Prosecution Service:
Compensation orders are governed by sections 130 - 133 Powers of
Criminal Courts (Sentencing) Act 2000 (PCC(S)A), while section 40 (1)
Magistrates' Courts Act (MCA) lays down the maximum amount a
magistrates' court can order, currently £5,000 per charge (s ee section 133
PCC(S)A for the position on TICs). The Crown Court has unlimited
powers, but should have regard to the means of the offender. While the
court's powers are very widely drawn, the High Court has stated that
compensation orders should only be made in simple straightforward cases.
From 3 December 2012, section 63 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 inserts section 130(2A) into the
PCC(S)A 2000 providing: "A court must consider making a compensation
order in any case where this section empowers it to do so". This new
requirement is in addition to the long -standing requirement in section
130(3) to "give reasons...if it does not make a compensation order...". 55
It should, however, be noted research has shown that compensation awards under
these legislative measures are rare and inconsistently applied. 56 As the burden falls on
the offender, many offenders are not in a position to pay a compensation award.
The Code, Chapter 2, Part A, Section 1(19).
The Code, Chapter 2, Part A, Section 1(20).
55 CPS, “Sentencing – Ancillary Orders”
<http://www.cps.gov.uk/legal/s_to_u/sentencing_and_ancillary_orders_applications/#a01> visited 23 March 2015.
56 See discussion regarding court-ordered compensation in Newburn (n 25), 369-370.
53
54
31. Text on Victim Impact Statements -what can be the content of this statement?
Are there consequences attached for exceeding the scope of permissible
content? Are they written or oral statements? What weight is given to this
statement? VPSs must, like witness statements, be in good form subject to Section 9
of the Criminal Justice Act 1967. According to CPS guidelines, VPSs are an
opportunity for the AV to express how the crime has affected their lives physically,
emotionally or financially. 57 The VPS should not include opinions about the
punishment of the accused; these opinions will be ignored by the court and excluded
from any sections of the VPS the court permits to be read aloud in court .
32. Text on Compensation (include: does this depend on a finding of guilt? What
is the procedure? What is the objective? ) As explained above, trial judges may
award compensation payments from convicted offenders to AVs as an ancillary order
at sentencing. However, AVs may also seek compensation from public funds through
the Criminal Injuries Compensation Scheme. 58 Compensation under this scheme is
not dependent on guilt of the offender, but does depend on reporting the violent
crime to the police. The scheme can take into account bad character of the AV.
Alternatively, AVs may take their own independent civil acti on against their offender
through one or more of the common law’s intentional Torts, such as Assault,
Battery, False Imprisonment or Fraud. 59 While these torts are actionable per se (the
claimant doesn’t have to prove harm or damage) , damages awards from a successful
action under one of these Torts is generally quantified in proportion to the proven
physical, economic and psychological harm suffered by the AV , though aggravated
damages may also be awarded in intentional Torts. 60
33. What rights rest with the alleged victim in respect of the appeal? An AV has no
rights in relation to an offender’s decision to appeal either the conviction or the
severity of the sentence. While under Sections 35 and 36 of the Criminal Justice Act
1988 the CPS can appeal a sentence if it appears unduly lenient, the AV has no rights
in relation to such a decision to appeal.
34. What passive rights to victims have during the appeal (e.g. right to attend the
hearings, right to legal counsel, right to be informed on the trials and their
The Code, Chapter 2 Part A, section 1(11).
Criminal Injuries Compensation Act 1995. Note, however, that research indicates compensation awards from the
Criminal Injuries Compensation Board is even rarer than post-conviction, court-ordered compensation awards,
Newburn (n 25), 369-370.
59 See Wilkinson v Downton [1897] 2 QB 57. For general discussion on intentional Torts in the law of England and
Wales, see Markesinis and Deakin’s Tort Law (7TH edn, OUP, 2012), Chapter 9.
60 Appleton v Garren [1996] PIQR P1.
57
58
outcome, etc.)? Under The Code 61 an AV has, like in the case of the original trial, a
number of entitlements to be kept informed by their Witness Care Unit about any
appeals being made, the date and location of those appeals and the outcome of any
such appeal. Again, if an AV chooses to attend such an appeal hearing, they are
entitled to be seated separately from the appellant and their family and friends, to be
given a point of contact in the court, and receive information regarding victims’
support services, and, if the appellant is to be released on bail pending the appeal, to
be told within one working day of the decision to rele ase on bail. If the appeal is to
the Court of Appeal or United Kingdom Supreme Court specifically, the AV is
entitled to a meeting with the CPS to have the nature of the appeal and proceedings
explained. In relation the the AV’s VPS, if new relevant information is available to
the AV regarding the impact the crime has had on them, a new VPS may be sent to
the Court of Appeal for consideration in an appeal against the sentence.
Should the offender appeal to the Criminal Cases Review Commission, the AV is
only entitled to be notified if the Commission’s review of the impact on the AV
decides the AV ought to be informed of the review. 62
35. Are there any rights available to the alleged victim when it comes to
enforcement? The AV has no rights in relation to enforcement of a sentence.
36. During the enforcement of the judgment, what passive rights do they have
(e.g. right to be informed about early release)? Under the Code of Best Practice
for Victims of Crime, 63 there are a number of entitlements for different categories of
victims. Victims of violent or sexual assault, where their offender is sentenced to 12
months in prison or more, are offered the statutory Probation Service Victim
Contact Scheme, which, through a Victim Liaison Officer, notifies the victim about
different stages in their offender’s sentence. 64 Participation in the Victim Contact
Scheme also entitles the victim to make representations to the Parole Trust in its
evaluation of an offender’s release and the conditions that might attach to that
release, and to be informed regarding conditions for release place on the offender by
the Parole Trust. 65 If the Offender is mentally disordered, similar entitlements apply.
66
If the victim is under 18 years of age, is a vulnerabl e adult, or is otherwise unable
The Code, Chapter 2, Part A, Section 5.
The Code, Chapter 2, Part A, Section 6(i)(1).
63 The Code, Chapter 2, Part A Section 6.
64 The Code, Chapter 2, Part A, Section 6(iii)(7).
65 The Code, Chapter 2, Part A, Section 6(iii)(9).
66 The Code, Chapter 2, Part A, Section 6(iii)(13-16).
61
62
to participate in the Victim Contact Scheme, their parent, guardian or carer will be
offered the service in their place.
QUESTION 2: ARE THERE ANY SPECIAL CATEGORIES OF
ALLEGED VICTIMS (EG CHILD WITNESSES, WITNESSES WITH
INTELLECTUAL OR MENTAL DISABILITY, WITNESSES ALLEGING
SEXUAL ABUSE ETC) TO WHOM THE ABOVE RIGHTS ARE
AVAILABLE? IF YES, DEFINE THOSE CATEGORIES AND ANSWER
THE ABOVE QUESTION IN RESPECT OF EACH CATEGORY.
Special provisions for distinct categories of witnesses have been outlined above.
CONCLUSION

In England and Wales, the police have a legal duty to investigate crimes under the Human
Rights Act.

AVs can judicially review failures to investigate crimes, or they can complain to the
Independent Police Complaints Commission.

AVs have a variety of “entitlement” or “passive rights” during a police investigation, under
the Code of Practice For Victims of Crime in England and Wales. These “entitlements”
may be enhanced to “rights” following the transposition of the Victims’ Rights Directive.

The Code and other statutory measures provides for support of AVs during investigation.

There is provision for Witness Protection.

AVs have “entitlements” to be consulted about the status of a prosecution.

AVs can request a review of a decision not to prosecute, or to end a prosecution.

AVs have no entitlement to change the scope of the charges against an defendant.

AVs have a number of entitlements or passive rights under The Code before and during
the trial.

AVs of sexual assault are entitled to anonymity.

Courts can order anonymity in cases of other vulnerable or intimidated witnesses.

Courts, in certain circumstances can order witness (including AV) evidence to be heard in
camera.

AVs are entitled to make a VPS which reflects the impact the crime has had on their life
and have it submitted to the court. This VPS may be read out loud in court before after
conviction but before sentencing.

AVs do not have independent legal representation during the criminal trial.

AVs do not have the right to make opening or closing statements.

AVs do not have the right to present evidence.

AVs do not have the right to call witnesses.

AVs do not have the right to cross-examine witnesses.

AVs do not have the right to raise objections.

AVs have the right to have support persons with them during the trial.

Certain AVs (children, vulnerable adults, victims of violent and sexual crimes) are entitled
to special measures in court.

AVs can get compensation at sentencing.

AVs can apply to a centrally-funded compensation scheme.

AVs can take personal or private civil actions against their offenders for compensation.

AVs do not have rights in relation to appeals.

AVs have various entitlements or passive rights during any appeals.

AVs do not have rights in relation to enforcement.

AVs possess a number of entitlements in relation to information about any decisions to
release their offender.

AVs can make representations to the Parole Trust in relation to decisions to release their
offender.