Victims of Crime Research Digest, Issue No. 6

A Comparative Overview of Victims’ Rights, Enforcement Mechanisms, and Redress in England and Wales and the American Federal Jurisdiction

Marie Manikis Footnote 42

The development of victim-related policies and the enactment of victims' "rights" has become a standard feature of common law jurisdictions. Although most countries do not provide victims with legally enforceable rights in courts, the term "rights" is frequently employed by politicians, academics, and the media to designate an array of different expectations or entitlements that victims should expect from the justice system. Victims' rights in this broader sense can be divided into two separate categories: service rights and procedural rights.Footnote 1 Service rights are initiatives that aim to provide victims with better treatment in, and experience of, the criminal justice system. Procedural rights are more controversial within the adversarial context, since they provide victims with a more central participatory role in the decision-making process.Footnote 2

In England and Wales, victims' rights mainly consist of service rights. Some procedural rights exist, but they are generally enforced outside criminal proceedings. The documents establishing these policies are diverse, including statutes, pledges, schemes, and codes. Although the Code of Practice for Victims of CrimeFootnote 3 (the Code) was enacted in 2005 under the Domestic Violence, Crime and Victims Act 2004, many policies related to victims in England and Wales are non-statutory. This approach is very different to America's primarily legislative approach. Victims' rights in the US are mainly entrenched in statutes and state constitutions and generally focus on victim participation in criminal proceedings. To some extent, the legal nature and force of these policies is an important factor influencing how they are enforced. However, other factors are also influential, including the types of enforcement mechanisms provided to victims, their accessibility, and the will of individuals to enforce them.Footnote 4

This brief article provides an overview of the nature and scope of victims' rights and discusses the recent enforcement mechanisms available for victims in England and Wales, particularly under the Code of Practice for Victims of Crime and in the federal American jurisdiction under the Crime Victims' Rights Act (CVRA).Footnote 5

What Is the Nature of Victims' Rights in Both Jurisdictions?

Victims' Rights in England and Wales: The Primacy of Individualised Service Rights, Information, and Participation Through Prosecutors

In England and Wales, victims' rights are mainly service rights. The Code of Practice for Victims of Crime has played a major role in providing victims with a minimal level of service they can expect from eleven criminal justice agencies,Footnote 6 including a comprehensive and detailed list of information rights.Footnote 7 In addition, the Code includes a clear division of service obligations between the different criminal agencies to facilitate implementation and avoid confusion among the different agencies. For instance, the Code (as well as prosecutorial pledges and the Code for Crown Prosecutors) recognises the prosecutor's key role, not only in informing victims about decisions,Footnote 8 but also in meeting certain victims and providing them with explanations when certain prosecutorial decisions are made in the most serious crime cases.Footnote 9 Witness Care Units also have a unique duty to inform victims about case progress and to identify victims and witnesses with particular needs that would require enhanced services under the Code.Footnote 10 Finally, the Victim Personal Statement (VPS) scheme rolled out nationally in 2001 has provided victims with a right to submit a victim personal statement (VPS) to the police which is also meant to be part of the victim's file to inform criminal justice agencies about victims' specific service needs.Footnote 11

Victims in England also have procedural rights that are generally implemented through direct contact with criminal justice agencies. There is therefore a central reliance on criminal justice agencies to bring victims' interests and views forward into the criminal process. This contrasts with the direct access to criminal courts facilitated by the CVRA in the US.

In effect, prosecutors in England in recent years have been increasingly obliged to include victims in the process, not only by providing them with information, but also by taking into account their interests and views in prosecutorial decisions as part of the wider public interest.Footnote 12 Notable examples of these rights include the right victims have to share their views on decisions on whether a prosecution is required in the public interest,Footnote 13 decisions on whether to accept guilty pleas,Footnote 14 and requests for compensation and ancillary orders.Footnote 15 Finally, victims have a right to submit a written victim personal statement (VPS) which will constitute part of their file, and prosecutors have a duty to draw the sentencing court's attention to any victim personal statement in the file to facilitate the court's role in reaching an appropriate sentence.Footnote 16

Victims' Rights in the American Federal System: An Emphasis on Participation in Criminal Justice Proceedings

Contrary to the English approach, victims' rights under the federal American model have developed much more around the principle of victim participation in criminal proceedings, an approach emphasized by the enactment of the federal Crime Victims' Rights Act in 2004 (CVRA). One of the main features of this statute?novel within common law jurisdictions?is the ability of victims to have standing in criminal proceedings to assert their rights and hire lawyers to represent them in these instances. Victims' rights under the CVRA include:

  1. the right to be reasonably protected from the accused;
  2. the right to reasonable, accurate, and timely notice of any court proceeding, or any parole proceeding;
  3. the right not to be excluded from any such public court proceeding (…);
  4. the right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding;
  5. the reasonable right to confer with the attorney of the Government in the case;
  6. the right to full and timely restitution as provided in law;
  7. the right to proceedings free from unreasonable delay; and
  8. the right to be treated with fairness and with respect for the victim's dignity and privacy.Footnote 17

These rights were heavily inspired by the Victims' Rights Amendment which failed to pass despite three separate attempts and thus read much more like a constitutional bill of rights than a detailed statute.Footnote 18 Hence, contrary to the English Code's detail, most rights under the CVRA are vague. According to the statute, judges as well as prosecutors are meant to contribute to their implementation, but in general, no clear division of duties is articulated.

Over the years, however, federal courts have clarified the scope of some of these rights.Footnote 19 For instance, with regards to the right to notification, it was specified in TurnerFootnote 20 that courts have an independent affirmative obligation to ensure that victims have been notified of court proceedings. In this respect, the court directed the prosecutor to provide a list of victims to the court to ensure they were given adequate notice of court proceedings. Furthermore, courts have also specified the scope of victims' rights to confer with the prosecutor and suggested that the purpose of this right is not to second-guess or veto prosecutorial decisions, but rather to allow victims "to obtain information from the government, and to form and express their views to the government and court."Footnote 21 More specifically, in a case involving a plea negotiation, the court found that the victim's right to confer with the prosecutor extends to conferring with prosecutors prior to reaching a plea agreement.Footnote 22 Finally, in a case interpreting the victim's right to make a victim impact statement in sentencing, an appellate court specified that victims have a right to address the court directly and orally to ensure procedural fairness.Footnote 23 It added that "the CVRA clearly meant to make victims full participants"Footnote 24 in the criminal justice process and thus were given the right to address the court in the sentencing hearing. Moreover, it was stated that under the CVRA, "victims now have an indefeasible right to speak similar to that of the defendant in every public proceeding including those that involve release, plea, sentencing, or any parole proceeding."Footnote 25

What Enforcement Mechanisms and Redress Are Available for Victims in Both Jurisdictions in Cases of Breaches?

In both jurisdictions, for the first time victims have been provided with explicit enforcement mechanisms to respond to breaches. Despite some of their similar aims,Footnote 26 namely providing victims with effective, objective, and accessible mechanisms to enable quick and adequate redress, the main mechanisms available for victims in both jurisdictions operate very differently.

England and Wales: Informal Mechanisms as the Main Process and Judicial Review as a Mechanism of Last Resort

Since the development of victims' charters in the 1990s, victims in England have been able to bring forward complaints to the agency in breach. Under the Code that replaced these charters in 2006, the initial requirement to bring complaints to the agency in breach remained, but for the first time, victims were provided with a mechanism to bring their breaches forward to an independent entity, the Parliamentary Ombudsman (PO), via their Member of Parliament (MP) if they remained dissatisfied with the response made by the agency allegedly in breach. This process is much more informal than a court process, involving fewer written procedures and not requiring any legal representation. The PO process is not adversarial like an ordinary tribunal and relies more on investigative/inquisitorial techniques by the PO that favours discussion and explanations between the parties and the decision-maker.Footnote 27

The PO has not been vested with powers to legally enforce its decisions but can nevertheless recommend redress/remedies to the agency in breach to remediate the situation. These remedies include:

Although the amount of complaints that have reached the remedial stage are very low, data obtained under a Freedom of Information request suggests that agencies have complied with the PO's recommendations. Hence, victims were provided with a combination of remedies, ranging from apologies to redress payments going up to £5,000 (approximately C$8,000).Footnote 29

Judicial Review: The Exception?

Even if victims do not have general standing in criminal proceedings to enforce their rights, judicial review is a mechanism available for victims in England and Wales, particularly for breaches that occur under the Code for Crown Prosecutors. This includes cases in which victims seek to challenge a decision not to prosecute.Footnote 30 Although the judicial method remains exceptional, a recent Court of Appeal decision reconfirmed the availability of this mechanism and most importantly highlighted that victims have a right to seek review (by means of complaint to the agency in breach or judicial review) of a decision not to prosecute, which is in essence the same as the right set out in the Draft EU Directive.Footnote 31

For breaches related to the VPS scheme or other pledges, it is not clear whether victims have any mechanisms to challenge breaches and obtain redress?other than possible internal complaints. Since these "rights" are not specifically listed in legal or quasi-legal documents, and thus no explicit enforcement process is provided, it may well be that they are mere suggestions and guidelines without any form of redress.

The American CVRA and Its Legal Enforcement Mechanisms

Under the CVRA, a new legal enforcement mechanism was createdFootnote 32 which enables victims or their legal representative to first bring forward a motion for relief to obtain redress in a criminal district court in cases of breaches and subsequently, if the district court has denied relief, file a mandamus action to an appellate court. This recourse to the appellate court allows inferior courts to be held accountable and victims to access remedies provided in cases of judicial error.

The CVRA aims to provide victims with quick and robust remedies for certain breaches, directly implemented within criminal proceedings and intended to put victims back in the original position prior to the breach (to the extent that this is possible). This includes the remedy of voiding and re-opening procedures in cases where a victim's right to be heard has been breached.Footnote 33 For instance, in Kenna,Footnote 34 victims' rights to be heard under the CVRA had been breached by a district court that did not allow victims to be orally heard at sentencing. Victims therefore filed a mandamus action, and the appellate court ruled that the district court should "be cognizant that the only way to give effect to Kenna's right to speak as guaranteed to him by the CVRA is to vacate the sentence and hold a new sentencing hearing."Footnote 35 The Federal District Court voided the sentence and conducted a new sentencing hearing in compliance with the appellate court's opinion.

Furthermore, in US v MonzelFootnote 36, following a district court's decision that did not award the full amount of restitution, the victim, through her attorney, challenged the award on a petition for mandamus, and the appellate court found that the victim was entitled to relief since the victim had a right to full and timely restitution. It therefore remanded the case to the district court and ordered that a new amount be calculated that would reflect her losses attributable to the defendant's offence.

Remedial Limitations Under the CVRA

The CVRA contains several remedial limitations. They include:

  1. the inability to bring forward a cause of action in order to obtain damages for victims' rights violations;Footnote 37
  2. the explicit limitation that failures to afford rights do not provide grounds for a new trial;Footnote 38 and
  3. remedies that reinstate victims in their initial position to exercise their right are not available for every type of breach under the CVRA.

Thus, for many rights, particularly for those that create positive obligations for the government, no explicit remedies are detailed in case of breach. Therefore, possible remedies are left to the discretion of the courts. In those instances, courts have generally exercised a certain level of deference in relation to the remedies provided.

For instance, in cases of notification breaches under the CVRA, remedies are generally only provided for future breaches. In US v Rubin,Footnote 39 following a breach to notify a victim of her rights, the court suggested that given the lack of any violation of substantive CVRA rights, the Court perceived the government's misstep on notice as the sort that is remediable only prospectively and not retrospectively. In Turner,Footnote 40 following a breach of notification related to proceedings, the Court directed the government to provide all alleged victims a written summary of the proceedings to date as well as notification of their rights under the statute with respect to future proceedings, including notice of the next proceedings and their right to be heard. Finally, in re DeanFootnote 41, although the appellate court recognised that victims were not notified or consulted by the government attorney prior to reaching a plea agreement, the judge suggested that this would not have affected the plea's outcome and highlighted that the mandamus standard was not met. Consequently, it did not see fit to allow the relief of rejecting the plea.

In brief, under the CVRA, courts have generally been more inclined to provide remedies for participatory rights in criminal proceedings following court violations of rights, but have been much less inclined to provide for prosecutorial (governmental) breaches, or breaches that do not affect the outcome of proceedings.

Conclusion

This brief comparative overview of rights, enforcement mechanisms, and remedies suggests that victims' rights and enforcement mechanisms have evolved very differently in both jurisdictions under analysis. Whilst rights and enforcement mechanisms in England and Wales have mainly developed outside criminal proceedings, in the federal American jurisdiction, victims have been recognised as direct participants within these proceedings, and remedies are generally provided within these proceedings. A deeper analysis of their implementation on the ground is warranted for the understanding of these mechanisms and is currently being explored in the author's doctoral research.

Finally, common law jurisdictions such as Canada can learn from these important differences and may find inspiration in the above models. However, it is important to bear in mind that each mechanism is shaped and implemented within a specific cultural context, and thus direct transplantation of one mechanism in a different jurisdiction will not necessarily produce the same outcomes.

References