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Critically discuss the phenomenon of secondary victimisation and explain whether recent reforms to the criminal justice system have effectively eliminated this phenomenon
It is important to recognise that secondary victimisation can be either personal or institutional. The impact of this type of victimisation is succinctly described by the European Form for Victim Services :
“Research and professional experience shows that secondary victimisation, generated either by institutions or individuals, is often experienced by victims in the aftermath of crime. Secondary victimisation involves a lack of understanding of the suffering of victims which can leave them both isolated and insecure, losing faith in the help available from their communities and the professional agencies. The experience of secondary victimisation intensifies the immediate consequences of crime by prolonging or aggravating the victim’s trauma; attitudes, behaviour and acts or omissions can leave individuals feeling alienated from society as a whole.”
Attempts to address this phenomenon have taken place at international and European level and have most recently culminated in this jurisdiction by the enactment of the Domestic Violence, Crime and Victims Bill 2004 which received Royal Assent on 15th November 2004 and the publication pursuant to s.32 of that Act of The Code of Practice for Victims of Crime which, following a period of consultation, was published on 18th October 2005 and which will become law in April 2006. In 1985, the United Nations by consensus adopted the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which recognised:
“…that the victims of crime…and also frequently their families, witnesses and others who aid them, are unjustly subjected to loss, damage and injury and that they may, in addition, suffer hardship when assisting in the prosecution of offenders”
and called upon member states to implement policies “to reduce victimisation and encourage assistance to victims in distress”. The ensuing UN Guide for Policy Makers focussed on the need to train and sensitize police, justice and other personnel to the needs of victims in order to ensure that they receive “proper and prompt aid”. The Council of Europe has emphasised the need at all stages of the criminal justice procedure to question the victim “in a manner which gives due consideration to his personal situation, his rights and his dignity” and gave rise to the introduction of an EU Framework Decision in March 2001 . In this country, the Victims’ Charter was first published in 1991and has now been replaced by the Code.
The Crime and Disorder Act 1998 (and the subsequent Youth Justice and Criminal Evidence Act 1999) provided for reparation and “restorative conferencing” but the use of these measures in practice has been heavily criticised on the grounds that, particularly so far as conferencing was concerned, the victims were unable to have a sufficiently significant influence upon the process (not even being allowed to attend certain conferences). Thus it may be argued that these measures, while paying lip-service to the value of restorative justice as a means of reducing secondary victimisation, in fact continued to marginalise the victim. The newly-published Code may be seen as an attempt to mitigate this failing but it cannot be said entirely to have succeeded in protecting the rights of victims so proudly proclaimed by the UN and European declarations.
The restrictive nature of the Code should be noted. Section 3.2 provides that services should be provided to the person making an allegation of criminal conduct but that this person must be the “direct” victim of such conduct. The Code does not require services to be provided to third parties or to indirect victims such as witnesses of violent crime. Further, certain services are to be provided only to “vulnerable or intimidated witnesses” this creates discrimination between victims on the basis of their personal characteristics and while such characteristics might admittedly render them more susceptible to secondary victimisation, the lack of uniformity in such provision generates the possibility that other categories of victim will not receive a similar (appropriate) level of protection and service. Certain categories of victim are excluded entirely: road crash victims were excluded entirely from the first draft of the Code. After consultation, it was amended so as to entitle some of the bereaved to some of the services but all those injured in a road crash continue to be excluded. It should also be noted that the 2004 Act does not invest the Code with the status of law but merely provides that those who feel dissatisfied with the services to which they are entitled thereunder should have the right of complaint to the Parliamentary Commissioner (Ombudsman). However, breaches of the Code may be introduced as evidence in legal proceedings. Further, the Ombudsman has limited powers: he is not for example able to give directions to agencies within the remit but is rather limited to making recommendations.
Ultimately, it must be doubted whether the Code will achieve significantly greater success in eliminating secondary victimisation. It remains a code of practice as distinct from law. This discriminates against victims as a whole (in addition to the inherent discrimination between victims observed above) perpetuating the impression that victims are a category apart from other participants in the criminal justice process. The very concept of “providing services” to victims is exclusionary and serves only to emphasis the fact that victims are still not regarded as an integral part of the system. This may be due in large measure to territoriality on the part of the police and prosecuting authorities who may be suspected of continuing to regard victims in the role only of potential witnesses. This mind set may be responsible for the lacklustre performance thus far of the restorative justice measures described above. While the new legislation may therefore be welcomed as a genuine attempt to enshrine a basic level of protection for victims and may, it is to be hoped, prove instrumental in provoking a reconsideration of the necessity to place the victim at the heart of the criminal justice process, it falls far short of eliminating secondary victimisation as it is presently perceived. What is required is a wholesale reworking of the justice system based upon the primacy of hearing victims’ voices and addressing their needs.
Bibliography
- Council of Europe, Recommendation No. R (85) 11 of the Committee of Ministers to Member States on the Position of the Victim in the Framework of Criminal Law and Procedure
- Criminal Justice System, The Code of Practice for Victims of Crime, (October 2005)
- Criminal Justice System, Victims’ Code of Practice: Consultation (March 2005)
- European Council of Ministers, Framework decision on the standing of victims in criminal proceedings, 2001/220/JHA
- European Forum for Victim Services, The Social Rights of Victims of Crime, (1998)
- Gelsthorpe, L. & Morris, A., Something old, something borrowed, something blue, but something new? A comment on the prospects for restorative justice under the Crime and Disorder Act 1998, Crim LR 2000, Jan, 18-30
- Hansard (HL), 11 Mar 2004, Cols.1449-1450
- Roadpeace, Exclusion of Road Crash Victims from Victim Services Code, (25 June 2005), www.roadpeace.org
- Strang, H., The Crime Victim Movement as a Force in Civil Society in Strang, H. & Braithwaite, J., Restorative Justice and Civil Society (2001)
- United Nations, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (General Assembly Resolution 40/34 of 29 November 1985)
- United Nations Office for Drug Control and Crime Prevention, Guide for Policy Makers on the implementation of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1999)
- Women’s Aid Federation, Briefing: Domestic Violence, Crime and Victims Bill, (April 2004)
- Young, W. & Morris, A., Reforming Criminal Justice: The Potential of Restorative Justice in Strang, H. & Braithwaite, J., Restorative Justice, Philosophy to Practice, (2000)
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